REPRODUCTIVE HEALTH DIGEST (5/9/24)

Developments in Abortion, Autonomy, and Access: 

A great deal has happened in reproductive health law at both the state and federal levels in the past two weeks. In this week’s Digest, we take a look at changes to the law in Florida, Arizona, and North Carolina, as well as how abortion is shaping the national conversation around the upcoming election season. We also cover health equity and bodily autonomy news from around the country. Please read to the end for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

This week’s must-read comes out of Texas, where a man has retained anti-abortion attorney Jonathan Mitchell to investigate his partner’s out-of-state abortion. The abortion took place in Colorado where the procedure is protected, and traveling between states to obtain medical care is entirely lawful. However, the petition reportedly claims that there are grounds for a lawsuit under either  Texas’s wrongful-death statute or SB8–the state’s  6-week abortion ban, which allows private citizens to bring a lawsuit against anyone who “aids or abets” an illegal abortion. Colorado has a shield law in place aimed at protecting individuals who travel out of state for care from investigation or prosecution. This lawsuit may be one of the first challenges that we see to these reproductive health care shield laws.

Legal Changes at the State Level: 

• Brief Overview: 

• Florida: Florida’s 6-week abortion ban has taken effect, cutting off yet another important access point for the South and rousing pro-choice sentiment in the red state.

• Arizona: Arizona’s Governor signed a bill repealing the State’s 1864 total abortion ban, which was ruled enforceable by the state’s Supreme Court last month.

• North Carolina: A federal judge has ruled that aspects of North Carolina’s 12-week abortion ban relating to medication abortion are unlawful. Specifically, Judge Catherine Eagles determined that the state’s provisions requiring physician-only prescribing, in-person prescribing, dispensing and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA are preempted by the FDA’s own regulations to the contrary. 

• Federal: In an interview with Time Magazine, presidential hopeful Donald Trump, who has flip-flopped on the issue of abortion, was asked about his current position. Specifically, he was asked questions about whether he would have a problem with states imposing laws to surveil people’s pregnancies in furtherance of state abortion bans. He responded that he believes that states might do that and repeatedly stated his position that all issues around abortion are up to the states. When asked if he was comfortable with pregnant people being directly prosecuted for abortions, he stated that it’s irrelevant whether he is comfortable with it because it is up to the states. Although there has been a great deal of debate around the question of a federal abortion ban (and such a ban would be devastating), the reality is that full deferral to the states is in itself an extreme position. It allows the most draconian abortion bans to remain lawful, despite the measurable harm that they cause. And, an explicit federal abortion ban would not be necessary to functionally eliminate access on a national scale. Actions like enforcing the Comstock Act or wielding the FDA to limit access to certain drugs could achieve a similar result without the need for congressional approval.
  

Deeper Legal Analysis 

• Florida: 

• Florida’s Florida’s 6-week abortion ban took effect on May 1st, dramatically narrowing the timeframe for abortion availability from 15 weeks and choking off yet another access point in the South. The law was signed by Governor Ron DeSantis in spring 2023, but it did not immediately take effect while the state Supreme Court weighed whether the constitution protects the right to reproductive autonomy. 

• The newly enforced law, misleadingly titled the “Heartbeat Protection Act,” restricts abortion after the gestational age of the embryo is determined to be more than 6 weeks. It includes narrow and vaguely written exceptions to save the life or health of the pregnant person, expressly excluding mental health from the definition of health. It also allows termination prior to the third trimester if two physicians certify that the fetus has a fatal abnormality, or prior to 15 weeks if the pregnancy is a result of rape, incest, or human trafficking and the victim shows proof that they reported the crime. Of course, we know by now that these kinds of exceptions rarely work in practice and throw both doctors and patients at the mercy of legal uncertainty, and requirements that victims report the crime in order to obtain care are medically unnecessary and cruel.

  The enforcement of this 6-week ban devastates the availability of abortion in an already access-deprived American South. Florida was one of the last states in the region to not enforce a total or extremely narrow abortion ban, and according to data from Guttmacher 1 in 3 abortions in the South took place in Florida last year. With the law in place, the closest state for patients to receive care is North Carolina–three states north. And, care in North Carolina is limited by the state’s own 12-week abortion ban. This is particularly problematic for patients who must take time off work to travel a long distance, as well as save up money for travel, childcare, and the procedure itself. 

  The final days before the 6-week ban took effect saw scenes of chaos and urgency at abortion clinics, with clinics staying open longer hours and seeing as many patients as possible. Doctors reportedly contacted patients who had delayed their abortion under the 15-week ban in order to save money for the procedure to remind them that they have little time left before the window for care closes. This chaos is not new, with abortion bans having spread all over the country and patients having to travel increasingly long distances to access basic care–even in emergency situations. The 6-week ban will further the ongoing medical crisis heralded by Dobbs and endanger the lives of countless pregnant people, particularly people of color and those who live in poverty. 

  The enforcement of the 6-week ban has increased attention on the Florida abortion rights ballot initiative that will go before voters in November. Advocates must get 60% of the vote for the initiative to pass, and the race is likely to be a close one. Anti-abortion interference with the democratic process has become a feature of ballot initiative efforts around the country, and activists opposed to the amendment have already indicated that if it passes they are prepared to file a lawsuit challenging the initiative on fetal personhood grounds. 

• Arizona: 

  • Arizona’s Governor Katie Hobbs has signed a bill repealing the State’s 1864 total abortion ban, which was ruled enforceable by the state’s Supreme Court last month. Prior to the Court’s ruling, the governing law in Arizona permitted abortion until 15 weeks into pregnancy.

    The Court’s decision to allow the 1864 ban to be enforced sent shockwaves through the country, becoming a signal of how extreme the U.S. has become on abortion post-Dobbs. Many were quick to point out that the Civil War-era law was enacted before Arizona even became a state, and long before women had the right to vote–let alone participate in the legislative process. Calls for the legislature to act to repeal the ban began swiftly after the release of the Court’s decision, with politicians who had supported the ban facing immediate political backlash and scrutiny.  Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban. 

    After several attempts to gain the legislative support needed to repeal the ban, the repeal bill finally made its way to Governor Hobbs’ desk, with Republicans who broke with their party to support it facing heavy criticism from anti-abortion groups and activists. Despite the repeal, the Supreme Court’s decision is likely to galvanize voters on Arizona’s abortion rights ballot initiative this November, similar to what is happening in Florida. The fact that the state has a high court that is willing to legitimize an 1864 law with no exceptions other than to save the life of the pregnant person sounds the alarm to voters that even in states where abortion is not yet banned, there is no guarantee that that will remain the case. 

    At present, the 1864 ban is set to go into effect on June 27th at the earliest, and the repeal bill will not take effect until 90 days after the state’s legislative session closes, likely in June or July. This means that the ban will probably briefly take effect over the summer. For a look at what this kind of legislative chaos does to the healthcare system, take a few moments to read this piece describing the atmosphere at an Arizona abortion clinic after the Arizona Supreme Court’s ruling. 

• North Carolina:

  • Judge Catherine Eagles, a federal judge in North Carolina has ruled that aspects of North Carolina’s 12-week abortion ban are unlawful. Specifically, Judge Catherine Eagles ruled that the state’s abortion pill-related provisions requiring physician-only prescribing, in-person prescribing, dispensing and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA are preempted by the FDA’s own regulations to the contrary. 

  • The lawsuit in question was brought by Dr. Amy Bryant, a North Carolina ob-gyn. She argues that aspects of North Carolina’s ban are unconstitutional as they are preempted by contradictory federal regulations on medication abortion. Although Judge Eagles struck down several of the state’s restrictions, she allowed others that were not preempted by federal law to remain in place. Specifically, she found that the provisions of the law requiring an in-person consultation 72 hours prior to an abortion, use of an ultrasound, an in-person examination and blood testing, and the reporting of non-fatal adverse events to the state were not preempted. In September 2023, Judge Eagles issued a ruling in a separate case halting enforcement of several other provisions of the North Carolina law, including the requirement that surgical abortions after 12 weeks must take place in the hospital, and the requirement that physicians document the intrauterine location of early pregnancies prior to administering medication abortion. 

  • The issue of abortion availability in North Carolina is especially relevant as Florida’s 6-week abortion ban takes effect, forcing many to travel to North Carolina for care. It is also a timely ruling as the Supreme Court considers further restricting access to mifepristone nationwide in a case challenging the FDA’s authority to regulate the drug.

What else is happening in access? 

• The Kansas legislature has sent a fetal personhood bill to the Governor, where it is likely that she will issue a veto. The bill would allow pregnant people to begin collecting child support at conception, weaving the concept of fetal personhood into the state’s laws, but it would not grant medical expenses to persons who had an “elective” abortion. The bill, and others like it, raises alarm bells after Alabama’s recent disastrous ruling that frozen embryos were unborn children under the law, leading to the temporary cessation of IVF activities in the state. 

• Kansas lawmakers’ attempt to override the Governor’s veto of a gender-affirming care ban for minors has failed. 

• The Ninth Circuit Court of Appeals heard oral argument this week in Matsumoto v. Labrador, the case challenging the constitutionality of Idaho’s abortion trafficking ban. You can listen to those arguments here.  

• 17 Republican-led states have sued the Equal Employment Opportunity Commission (EEOC) in federal court, arguing that a new rule interferes with the states’ right to regulate abortion. The new rule interpreted the Pregnant Workers Fairness Act to require employers to give workers “reasonable accommodations” for pregnancy, childbirth, or abortion. Opponents of the rule argue that it exceeds the intended scope of the Act, but in reality, it would require nothing more than basic accommodations–it does not require states to compensate for abortions or even allow paid time off. 

• Mexico may elect its first female president, and advocates are considering what this could mean for the future of abortion in the country. Last year, the country’s Supreme Court issued a ruling finding that laws prohibiting abortion violate the constitution, and 12 of Mexico’s 32 states have decriminalized the procedure thus far.

• The Fourth Circuit Court of Appeals upheld two lower courts’ rulings and found that state-provided health care must cover gender-affirming surgeries. The Court reasoned that failing to do so is openly discriminatory as the same procedures, like mastectomies, that are prohibited for transgender people are permitted for other purposes, such as treating cancer.

• Louisiana lawmakers have shot down a bill that would have added exceptions for rape or incest to the state’s abortion ban. 

• South Dakota advocates have gathered enough signatures for a ballot initiative protecting abortion rights to move forward. 

• The South Carolina senate has voted to approve a gender-affirming care ban for minors. If passed, the bill would prohibit puberty blockers, hormone treatments, and gender-affirming surgeries for minors. It would also require school administrators to notify parents if a child is using a name that does not conform with their sex assigned at birth. 

• Researchers are continuing to investigate flawed findings and methodologies in anti-abortion studies, including those relied upon by judges determining abortion-related cases. The studies purport to show mental health and physical risks associated with abortion that are inconsistent with scientific consensus. 

• The city of Austin, Texas has passed a resolution seeking to protect trans people and stating that it is the city’s policy to not use its funds, resources, or personnel to investigate or penalize people for providing or receiving gender-affirming care. 

• The Tennessee legislature has sent its proposed abortion travel ban to the Governor for his signature. The bill would subject violators to mandatory prison time and increase fear while decreasing access in an already incredibly restrictive state. The ACLU and other advocacy groups are urging the governor to veto the bill. It has gone to the governor (SB 1971)

• Missouri advocates have submitted the necessary amount of signatures for their ballot initiative to move forward, despite a process fraught with opposition from both lawmakers and anti-abortion groups. 

• New York State has filed a lawsuit against anti-abortion group Heartbeat International and 11 crisis pregnancy centers, asking the court to block the groups’ claims regarding abortion pill reversal, a process that has not been adequately studied to determine safety and efficacy. 

• Self-managed abortions have been on the rise post-Dobbs, as many pregnant people are unable to access care in a clinical setting; although the history of pre-Roe self-managed abortions is an ugly one, the reality of modern self-management, largely through the use of abortion pills, is entirely different and remarkably safe. 

• Fears about the availability of IVF continue throughout the country, with families relying on it moving their embryos to access states at the recommendation of their clinics. 

• Florida has filed a lawsuit against the Biden administration challenging a new HHS rule prohibiting discrimination on the basis of gender identity under Section 1557 of the Affordable Care Act. 
  

REPRODUCTIVE HEALTH DIGEST (4/25/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we take an in-depth look at the Supreme Court’s oral arguments in Idaho v. United States, a consolidated case that asks whether Idaho can enforce its restrictive abortion ban despite federal law obligating hospitals to provide broader emergency care to every person. We also detail important reproductive health and bodily autonomy news from Arizona and elsewhere around the country. Please read to the end for all of the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Reproductive Rights and Health Equity News:

• This Week’s Must Read:

• If you read nothing else this week, we highly recommend that you take a few moments with this Associated Press report detailing accounts of pregnant people being turned away from emergency rooms post-Dobbs. The stories were obtained using Freedom of Information Act (FOIA) requests into pregnancy-related EMTALA complaints, and they show an appalling pattern of pregnant people, particularly those in states that have enacted harsh abortion bans, being denied urgent emergency care with catastrophic results.

Legal Analysis:

• Arizona:

  • After three failed attempts in as many weeks, the Arizona House has finally voted to repeal a “zombie” civil war-era total abortion ban, advancing the effort to the Senate, where it stands a good, but not certain, chance of passage. Repealing the law would reinstate Arizona’s previously enforced 15-week abortion ban.

  • Earlier this month, the Arizona Supreme Court issued an opinion allowing the state to enforce a long-dormant  total abortion ban, passed in 1864 before Arizona was even a state. The court’s decision threw prominent Republican politicians into fraught political waters, particularly as voters are poised to vote on an abortion ballot measure in November. And, calls for the legislature to repeal the ban have been ongoing since the court’s ruling, including from anti-abortion Senate candidate Kari Lake (although she has now flip-flopped on the issue several times).The decision also drew widespread criticism from across the country, including an announcement by California Governor Gavin Newsom that he would introduce legislation easing the way for Arizonans to be able to practice reproductive medicine in California.

• Idaho and EMTALA: 

  • This Wednesday, the U.S. Supreme Court heard oral arguments in Idaho v. United States, the second abortion case that the Court heard this term. The consolidated case turns on the question of whether Idaho can enforce its total abortion ban over conflicting federal law. After the Dobbs decision upended abortion rights in the U.S., Idaho passed one of the most severe abortion bans in the country. As relevant to this case, the state’s law only permits abortion when it is necessary to prevent the death of the pregnant person. It does not include an exception to preserve the pregnant person’s health–a facet of the law that state legislators have defended using arguments grounded in fetal personhood. 

  • In response to Dobbs and subsequently enforced state-level abortion bans, the U.S. Department of Health and Human Services issued guidance reminding hospitals of their obligations to treat patients under the Emergency Medical Treatment and Active Labor Act (“EMTALA”), regardless of state abortion bans. That guidance noted that state laws that are in conflict with EMTALA are preempted by the federal law to the extent of the conflict. EMTALA requires all hospitals that receive Medicare funding to stabilize any patient that presents with an emergency, regardless of their ability to pay or any other status. It was enacted in response to widespread “patient dumping,” the practice of offloading uninsured, low-income or undocumented patients to other institutions, resulting in devastating health outcomes. EMTALA’s exam and stabilization requirements are triggered not only in cases of possible death, but also to preserve the health of the patient and ensure their condition will not deteriorate as a result of hospital inaction, putting it in direct conflict with Idaho’s requirement that a provider not act unless it is necessary to prevent the patient’s death. In light of this conflict, the Biden administration sued Idaho, arguing  the state’s abortion ban could not stand with respect to abortions performed in emergencies pursuant to EMTALA. 

  • Similar to the mifepristone case that we have reported on previously in this Digest, the answer to this case should be a simple one: there is a state law and a federal law, and the two are in conflict with each other–under basic supremacy clause principles, and the express preemption language contained within EMTALA’s text, the federal law takes precedence. But, with a Supreme Court willing to upend settled law in order to restrict abortion, the odds of a majority of the justices embracing this clear truth appear low. 

  • During oral arguments, the justices divided along ideological and gender lines, with the male conservatives seeming willing to entertain the idea that EMTALA does not preempt Idaho’s abortion ban. Justice Alito, for example, specifically raised the question of whether EMTALA imposes an equal obligation of stabilization for both the pregnant patient and the fetus. This idea of fetal personhood is inconsistent with both EMTALA’s intent and purpose, as well as the actual practice of emergency medicine. As Solicitor General Elizabeth Prelogar explained in response to Justice Alito, the duty under EMTALA runs to the individual patient, meaning that a requirement to stabilize a pregnant patient’s fetus expands the care available to the pregnant individual but does not create an independent and separate duty to the fetus. Prelogar further explained how in practice, in the case of a previable fetus, you cannot stabilize the fetus without stabilizing the pregnant person, as the fetus's life is dependent upon the pregnant person’s. In the case of a viable fetus, the standard-of-care treatment option in such an emergency would be delivery, not abortion. 

  • The justices also went back and forth with Idaho’s attorney Joshua Turner on the question of whether the state’s ban is more restrictive than EMTALA’s requirements. By its very language, it is: the Idaho law restrains a clinician from taking action to resolve an emergency medical condition until and unless that clinician makes a good faith determination that such intervention is necessary to prevent death. EMTALA’s language imposes a broader obligation of care that encompasses impairment of a person’s health. Turner seemed unwilling to admit outright that Idaho’s law would tie doctors’ hands in certain dire circumstances, pivoting away from the question to say that such scenarios “implicate deeply theological and moral questions” and that Idaho had its own standard of care through which it has “drawn the line” on these issues. He continued by attempting to argue both that there is a direct conflict between the laws such that the federal government cannot force the state to comply with EMTALA, and that Idaho’s law is not as restrictive as the government represents, so doctors complying with Idaho law remain in compliance with EMTALA. 

  • While the male conservative Justices appeared open to Idaho’s arguments, the female Justices (including Justice Barrett at points), hammered Idaho’s counsel with questions designed to get at the heart of exactly what Idaho is telling its doctors they can and cannot do and how that will impact the availability of emergency healthcare. At several points, the Justices described real-world cases of women who have faced devastating health consequences as a result of being denied an abortion and pressed Turner on how Idaho’s law would handle such cases. Justice Kagan pointed out that “there’s a significant number [of such cases] where the woman’s life is not in peril, but she’s going to lose her reproductive organs” unless an abortion is permitted, and Justice Barrett pressed on the question of whether doctors could face prosecution for providing care in those circumstances. In his responses, Turner seemed not to understand that the uterus was an organ.

  • In spite of the deck seeming stacked against Idaho on legal, clinical and ethical grounds, numerous Justices raised issues that signaled their willingness to do whatever it takes to allow the state to prevail. Justices Thomas, Alito and Barrett all implied that state criminal law might supersede federal Spending Clause legislation. Justice Gorsuch questioned the U.S.’s right to injunctive relief and argued that such a right could lead to government usurping state powers. He raised this theory sua sponte, despite none of the lower courts raising a jurisdictional challenge to the government’s argument of object preemption, where a state law frustrates Congress’ purpose for a federal law. And finally, Justice Alito accused Solicitor General Prelogar of trying to “get out of” his analysis that EMTALA’s use of the term “unborn child” imposes upon the hospital a separate and zero-sum duty to the fetus.
    By the end of the two-hour arguments, the majority of the Justices appear poised to find a way to side with Idaho, with potentially devastating consequences for both abortion care in Idaho and emergency medicine in general. Since Dobbs, three rural hospitals in Idaho have closed their labor and delivery units, and one in four OB-GYNs in the state have either retired or moved out of the state. Recruitment for medical professionals in the state has also faced a crisis, with fewer and fewer providers willing to practice under the severely restrictive legal landscape. And physicians have spoken out about how their own practice would be impacted by a restrictive ruling, and how the Supreme Court misunderstands the practice of medicine.
    

More News in Access: 

• The Tennessee legislature has advanced a bill that would make “abortion trafficking” a crime in the state; it will now go to the governor’s desk for signature. If passed, the bill would criminalize assisting a minor in traveling to obtain an abortion without their parent or guardian’s permission, and mandate prison time for those found in violation. The bill would apply even to those minors who have been subjected to sexual assault by one of their parents–the very person who must consent to the abortion. One Democratic senator said that the bill “sounds like the Handmaid’s Tale.” 

• As Virginia Democrats try to protect contraception access in the state, Virginia Governor Glenn Youngkin has introduced a substitute amendment that would weaken the bill. In his suggested substitute, Youngkin changed it to a Section 1 Bill, which lacks the same legal heft, and removed a right of action for violations of the law. We will continue to report on this bill as it progresses through the legislature.

• A Colorado group has gathered enough signatures to place an abortion rights measure on the state’s ballot in November. Although abortion is currently legal in Colorado, enshrining that right into the constitution would give it permanence. Meanwhile, an anti-abortion measure has failed to garner enough signatures to move forward. 

• Kansas Governor Laura Kelly has vetoed a ban on gender-affirming care for minors; however, the Republican majority in the state legislature likely has enough votes to override her veto. 

• Kentucky democrats were unable to force through a vote to add exceptions for rape or incest to the State’s abortion ban before the end of the state’s legislative session.  The bill was never assigned to a committee, despite clear Senate rules requiring this. 

• Iowa has asked the state Supreme Court to allow it to enforce the state’s blocked 6-week abortion ban; the law has been placed on hold while litigation assessing its constitutionality plays out. The high court could either rule on the laws’ constitutionality or allow it to go back into effect and send it back for further consideration by the lower courts. 

• Florida advocates are ramping up their efforts to get voters to say “yes on 4,” the abortion initiative that will appear on the November ballot. Meanwhile, opponents of abortion rights have indicated that, if the initiative passes, they are ready to file a lawsuit challenging it using fetal personhood arguments that the state Supreme Court has indicated it is open to. Republicans say they’re ready to file a lawsuit. 

• The Supreme Court has allowed Idaho’s ban on gender-affirming care to take effect during the pendency of litigation. 

• Indiana Republicans are fighting to make individual reports detailing abortion care a matter of public record, infringing upon patient privacy in an extremely abortion-hostile state. 

• The White House has moved to put federal protections in place for patient’s reproductive health care information under HIPAA, prohibiting disclosure of such information for investigations into patients or providers in states where the relevant care is legal. 

• The U.S. Department of Health and Human Services (HHS) issued its final rule on Title IX protections last Friday, clarifying that its sex discrimination protections cover LGBTQ+ students, people in need of abortion, parents of all sexes and victims of harrassment and assault both on and off campus. The rule’s issuance was delayed while the agency processed and addressed the over 156,000 comments it received on its Notice of Proposed Rulemaking (NPRM) before the deadline of May 15, 2023. On Monday, Louisiana Education Superintendent Cade Brumley told the state’s schools to ignore the new rules, followed swiftly by his counterparts in Oklahoma, South Carolina and Florida. Extremist lawmakers have threatened to sue to keep the rule from going into effect on August 1.

• The ACLU has sued Montana over its new policy of requiring an amended birth certificate in order to have gender markers changed on a person’s driver’s license.  

• Ohio Republicans have introduced a new bill that would further restrict spending related to abortion. Although Ohio already severely limits any state funding of abortion services, this bill is unique in that it would not limit the prohibition to non-therapeutic abortions, and it is also not limited to state-funded entities.   

• Missouri anti-abortion activists are working to dissuade voters from approving an abortion rights ballot initiative, using false and misleading claims about the scope of the measure. 

• Maine’s Governor Janet Mills has signed into law protections for providers of both abortion and gender-affirming care, in an attempt to solidify the state’s status as a stronghold for bodily autonomy. 

• Seattle Children’s Hospital and Texas Attorney General have reached a settlement agreement in Paxton’s attempt to seize records relating to minors receiving gender-affirming care. The hospital, which attested that it does not provide in-person care to minors in Texas or virtually from Washington will not have to turn over any records and will rescind its business license in Texas. 

• A new report finds that young people are opting for permanent contraception methods such as tubal ligation and vasectomies at higher rates post-Dobbs, likely a reflection of anxiety about the lack of options in the event of an unplanned or medically complicated pregnancy. 

• Take a look here for a roundup of where abortion is on the ballot this year. 

• A review by Axios breaks down who has to drive the farthest to obtain an abortion by demographic groups, showing disproportionate access for people of color and those with a lower income.

REPRODUCTIVE HEALTH DIGEST (4/11/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we cover the recent rulings from the Arizona and Florida state supreme courts, as well as litigation developments out of Indiana and Tennessee. We also take a look at reproductive rights politics on the national stage and legislative movement at the state level. Reproductive health law has changed quickly in the past two weeks, even by the current post-Dobbs standard. Please read on for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

This week’s ‘Must Read’ comes from Ms. Magazine and takes a look at how American policy shapes and influences reproductive health equity on a global scale. Policies like the Mexico City Policy and the Helms Amendment that narrow access to reproductive health information and options have a negative impact on everything from abortion care to pregnancy outcomes and access to menstrual products in developing nations.

Legal Changes at the State Level: 

• Brief Overview: 

• Florida: Last week, the Florida Supreme Court issued two decisions relating to abortion. The first found that the state’s current 15-week abortion ban does not violate the Florida constitution’s privacy protections; this will allow Governor DeSantis’s previously passed 6-week ban to take effect 30 days from the ruling. The second decision found that an ongoing ballot initiative’s language was sufficiently clear to go on the November ballot. 

• National Election: This week, Republican presidential nominee Donald Trump announced his view that abortion regulation should be left to the states, declining to back a national abortion ban. However, the presidential hopeful would not need to explicitly pass a national ban in order to effectively end access. Instead, an anti-choice administration could instruct the DOJ and FDA to enforce policies that restrict access to medication abortion and make it virtually impossible to ship any materials needed to perform an abortion, potentially also impacting contraception. Although Trump has faced backlash from far-right anti-abortion groups and politicians for his failure to back a national ban, he has repeatedly touted the overturn of Roe as a key success of his administration, as recently as April 10th. 

• Arizona: The Arizona Supreme Court issued a ruling on Tuesday finding that an 1864 total abortion ban can be enforced. The Court stayed implementation of its decision for 14 days, and it is unclear what the ultimate impact will be as the state’s Democratic Attorney General immediately indicated that she will not prosecute cases brought under this law and the state’s Governor called for a repeal of the ban. At present, abortion is legal in the state until after 15 weeks gestational age. 

• Indiana: An Indiana Court of Appeals has upheld a lower court judgment blocking the state’s abortion ban in cases where it conflicts with a person’s sincerely held religious beliefs. Faith-based pro-choice arguments are a unique feature of post-Roe litigation, and the Indiana case may serve as a test case for other potential plaintiffs. The decision is likely to be appealed up to the State’s Supreme Court.
  

Deeper Legal Analysis 

• Florida: 

• Last week, the Florida Supreme Court issued two highly anticipated decisions relating to abortion access in the state. The first came in a case challenging the constitutionality of the state’s 15-week abortion ban, and the second addressed whether a proposed ballot initiative is sufficiently clear to go before voters in November. 

• At present, abortion is permitted in Florida until around 15 weeks gestational age, with exceptions for the life or health of the pregnant person or in certain cases of lethal fetal anomaly. However, last year Governor DeSantis signed into law a 6-week ban, with narrow exceptions for the life or health of the pregnant person or in cases of rape or incest until 15 weeks. This law was blocked while litigation over the constitutionality of the 15-week ban played out. Now that the court has ruled that the state constitution does not protect the right to abortion, the 6-week ban will take effect  30 days from that ruling. 
  

  The implementation of DeSantis’s 6-week ban further decimates reproductive health access in the South. Nearly all of Florida’s closest neighbors have enacted abortion bans far stricter than the currently enforced 15-week ban, and last year saw an influx of patients to the state. Now, patients closest access points will be Virginia or North Carolina, further burdening an already overburdened healthcare system. Since the Dobbs decision, the consequences of harsh abortion bans have been made evident with story after story of pregnant people failing to receive medically necessary abortions. The same will happen in Florida. Pregnant people in crisis will be forced to risk their lives and take extraordinary measures to travel long distances in order to receive medically standard care. This is likely to galvanize voters on the issue of abortion in November. 
  

  The second decision from the state’s high court relates to an ongoing ballot initiative effort that, if successful, would protect abortion in the state constitution until viability. The Court found that the language contained in the initiative was sufficiently clear to go before voters in November. The citizen-led ballot initiative has already collected enough signatures to qualify for the ballot, and the court’s decision clears another hurdle for it to move forward. 
  

  Despite finding that the initiative could move forward, the court’s majority, concurring and dissenting opinions gave alarming indications that the court is open to the idea of fetal personhood–or granting fetuses and embryos the same legal rights as any born person.  The dissenting justices were more explicit, making clear that they would support recognizing a fetus as a natural person under the state constitution. This is a concerning signal that , even if the amendment passes in November, the justices may be willing to entertain an argument that it conflicts with the state constitution’s guarantee of the right to life.  Justice Grosshans directly  alluded to this, writing that “the voter may think this amendment results in settling this issue once and for all[;] it does not.”  
  

  While the court’s decision to allow the amendment to move forward is positive, it is also the bare minimum and the obviously correct conclusion. The court’s review in this case was extraordinarily narrow–the question asked was not a substantive one but was merely whether the language of the amendment put voters on fair notice of what they are voting for. The language of the amendment is clear and unambiguous. Whether the justices would allow it to move forward consistent with the state’s own democratic process should have never been in question.

  Oklahoma: 

  • The Oklahoma legislature  has been extremely active in proposing anti-abortion bills this legislative session. Although it is not yet clear how many will pass and what their final language will be, the series of bills, taken together, could severely restrict access to abortion, contraception, and fertility treatments.
    
    One bill, HB 3216, has raised concerns about access to both emergency contraceptives like Plan B and intrauterine devices (IUDs). The bill was introduced by Republican Rep. Kevin West, who crafted it with assistance from the Alliance Defending Freedom, the anti-abortion group behind the federal case challenging the legality of medication abortion. In its current form, the bill defines pregnancy as beginning at fertilization, rather than implantation, and would ban any form of contraception that may interfere with implantation. State Representative Trish Ranson expressed her concern that, if passed in its current form, the highly restrictive language of the bill would effectively ban IUDs and emergency contraception.  When questioned about these concerns, Rep. West said that the bill was intended to target “over-the-counter items that are not always safe for everybody.” Notably, Plan B–the ‘morning after’ pill that anti-abortion groups falsely claim causes abortions–is an over-the-counter medication. The bill also includes strict reporting requirements for physicians, which have raised concerns about the creation of a statewide ‘database’ of pregnant people who have obtained an abortion. 

    Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban. 

    In addition to proposing a trafficking law for medication abortion, Oklahoma is following Idaho’s lead in attempting to pass a so-called “abortion trafficking” law. SB 1778 uses broad language and targets anyone who would help a minor go out of state to obtain an abortion without the consent of their parent or guardian. This would mean that a trusted friend or relative would be charged with trafficking, regardless of the pregnant person’s own consent to the abortion and related travel. 

    As legislative sessions progress, it is critical to be mindful that although outright abortion bans may not be passing at the rate that they did in 2023, lawmakers are quietly introducing bills that radically restrict access to all aspects of reproductive care–Oklahoma is far from alone in this effort..
    

• Arizona: 

  • This week, the Arizona Supreme Court dealt another blow to abortion rights by handing down a decision finding that a civil war-era 1864 abortion ban is enforceable in the state. 

  At present, abortion is illegal in Arizona after 15 weeks gestational age, with exceptions for the life or health of the pregnant person. However, the highest court in the state has now functionally overridden the legislature’s clear intent in passing that law, ruling instead that, because of the overturn of Roe, a total abortion ban can be enforced. This ban, by its express language, does not include an exception for the health of the pregnant person–it only includes an exception to prevent their death.  Providers found to be in violation of the law would face 2-5 years of prison time. As the court put it, “in light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.” 

  In purporting to parse state legislative intent, the Arizona Supreme Court upheld a law that was passed almost half a century before Arizona even became a state, and well before women had the right to vote (let alone participate in the legislative process). The idea that this reflects the present-day “legislature’s judgment” or the “will of [Arizona] citizens” is absurd on its face. 

  In its opinion, the court stayed the decision for 14 calendar days from the ruling to allow it to go back to the trial court for consideration of further questions. After that 14-day period, it will not go into effect for an additional  45 days, and once the decision takes effect,  the question of enforcement remains unclear. Arizona’s democratic Governor Katie Hobbs immediately condemned the ruling and vowed to continue fighting for the rights of pregnant people in the state. Last year, Governor Hobbs issued an executive order giving the state’s attorney general sole discretion to prosecute abortion related cases. And Attorney General Kris Mayes, also a democrat, issued a statement calling the decision “unconscionable” and an “affront to freedom” and vowing that no pregnant person would face prosecution under this law as long as she remains the attorney general. The responses by Arizona’s leadership are a hopeful sign that the law will not be enforced for the time being; however, that can change if and when state administrations change. 

  The court's decision has stirred debate over whether the legislature should move to repeal the long-dormant ban. However, Republican legislators stymied attempts to do so the day after the decision, leading to a heated exchange with their democratic counterparts. It remains possible that the legislature will take action to repeal it at some point in the future. 
  In addition to a legislative solution, Arizonans will have the opportunity to directly vote on whether to enshrine abortion rights into the state constitution this November. Post-Dobbs, abortion has been a driving issue in elections across the country, and it is all but certain that this most recent decision will galvanize voters to support the amendment. In the meantime, clinics and providers will be forced to yet again decide whether they are willing to risk their career and their freedom in order to practice medicine and care for their patients.
  

• Indiana:

  • In Indiana, where a total abortion ban is currently in place, a Court of Appeals has upheld a lower court judgment blocking the ban in cases where it conflicts with a person’s sincerely held religious beliefs. The plaintiffs in this case are made up of Hoosier Jews for Choice, three individuals and one couple. They collectively argue that the state’s abortion ban violates the state Religious Freedom Restoration Act (RFRA) because it infringes on their ability to practice their sincerely held religious beliefs. Specifically, the plaintiffs argue that the belief that life begins at conception is not a universally held religious view and that their particular faiths mandate abortion under certain circumstances, such as if the pregnant person’s life or health is endangered. 

  The Court of Appeals sided with the plaintiffs on their argument that the right to obtain an abortion when religiously mandated is the kind of religious freedom protected under the state’s RFRA. It also decided important questions of standing in the plaintiffs favor. In recent abortion litigation, a great deal of judicial energy has been spent on the question of whether and when plaintiffs have the right to bring a lawsuit. In this case, the state argued that the plaintiffs do not have a right to sue because they are not currently pregnant, and therefore are not facing an imminent threat to their religious liberty. The court disagreed, finding instead that the plaintiffs have shown that they have altered their behavior out of fear of becoming pregnant and being forced to contend with the state’s abortion ban. The court also agreed to allow the case to proceed as a class action, broadening its potential impact. Although this decision is only precedential in Indiana, it sends an important message to potential claimants in other states who may face similar religious burdens based on their state’s abortion and health restrictions. 

  This case also has potentially important federal implications, as Indiana’s RFRA is all but identical to the federal RFRA. Although there can be no certainty of litigation outcomes, the Indiana court’s opinion arguably creates a framework by which other litigants could challenge their state’s abortion ban under federal law. 
  Faith-based pro-choice arguments are a unique post-Roe litigation strategy–and one that turns traditional abortion litigation on its head. The pro-life movement has typically claimed religion as its own, portraying abortion as antithetical to faith. However, this lawsuit challenges that notion, pointing to the myriad faith traditions, including Islam and Judaism, that hold moderate or permissive views on abortion and arguing that state law should not be governed by one narrow and highly subjective view of when life begins. We will continue to report on this case as it develops; the appeals courts’ decision is all but certain to be appealed up to the State’s supreme court.

What else is happening in access? 

• Last week, Tennessee heard oral arguments in a case challenging exceptions to the State’s abortion bans. This case was brought directly by seven pregnant people and two doctors who were harmed by the State’s restrictive laws. This case closely mirrors a similar patient-driven case that is ongoing in Texas. The Center for Reproductive Rights, who represents the plaintiffs in the Tennessee case, argues that the existing exception for medical necessity is too vague to be workable and forces providers to take on potential liability in order to treat their patients.

• The Alabama legislature has proposed an abortion trafficking bill that would make it a crime  to “aid or abet” a minor in leaving the state to obtain an abortion without parental consent. Alabama’s bill is the latest attempt to criminalize interstate travel for abortion care, joining the ranks of proposed legislation in Oklahoma, Tennessee and Mississippi. Idaho has already criminalized such “abortion trafficking.”

• Iowa Attorney General Brenna Bird faced harsh criticism for her decision to stop state funding for emergency contraception for victims of sexual assault; at the time, she cited a state audit of state’s victim services programs. However, Iowa auditor Rob Sand has now stated that there is no formal audit going on regarding payment for emergency contraception. Removing access to emergency contraception is one form that attacks on contraception can take. 

• Following the passage of Issue 1, a constitutional amendment enshrining the right to abortion in the Ohio constitution, advocates have brought a lawsuit challenging remaining restrictions, including a 24-hour waiting period. The Plaintiffs argue that the requirements are now rendered unconstitutional. 

• A Texas woman is suing the Starr County DA after being wrongfully charged with murder for self-managing her abortion. Texas law does not permit murder charges to be brought against pregnant people who undergo an abortion, and the DA is accused of misleading jurors into formally charging the woman

• New polling continues to show widespread support for access to medication abortion ahead of a Supreme Court decision that may limit that access. 

• Colorado is poised to enact a law that would protect lgbtq+ youth in foster care, standing in sharp contrast with other states who expressly allow children to be placed with unsupportive families. 

• Amidst the ongoing fight against fetal personhood laws, one potential impact has received little attention–end of life care for pregnant people. Although every U.S. state allows advance directives wherein a person can specify what kind of life support they would like to receive in the event of a catastrophic injury, over half of the states make exceptions in cases where the person is pregnant. Fetal personhood laws would add an additional complicating layer to this legal equation, potentially requiring a pregnant person to remain on life support against their own wishes and the wishes of their family in order to sustain a pregnancy. 

• President Biden has teamed up with Amanda Zurawski, a plaintiff in the case challenging the exceptions to Texas’s abortion ban, to launch a campaign ad highlighting his support for restoring some measure of reproductive freedom. 

• An Alabama woman was forced to travel out of state to obtain an abortion despite her fetus having multiple anomalies, including a heart defect and a massive tumor; although the first committee approved her abortion request easily, the second denied it based on a finding that each of the anomalies on their own was survivable, and it therefore did not meet the criteria for an abortion in the state.

• A federal judge has dismissed a suit challenging a California shield law protecting trans people who come to the state for care; the judge found that the plaintiff failed to establish standing, as they could not show any way in which the law had injured them. 
  

REPRODUCTIVE HEALTH DIGEST (3/28/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we cover oral arguments in Alliance for Hippocratic Medicine v. FDA, the case challenging access to medication abortion, as well as critical legislative and administrative movements in the states. As always, we highly recommend that you read to the bottom to get the full picture of the current reproductive health landscape.

Before we dive into this week’s Digest, we want to thank everyone who joined us for this week’s same-day breakdown of the mifepristone oral arguments and exclusively invite you to join us again next month for a debrief of Idaho v. United States. In this case, abortion will once again be in front of the Supreme Court, as it considers whether federal obligations to treat emergency patients under the Emergency Medical Treatment and Labor Act (EMTALA) preempt state abortion bans. Arguments are scheduled for Wednesday, April 24th. 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Reproductive Rights and Health Equity News:

• This Week’s Must Read:

• ABC published this piece last week, highlighting the story of a seventh grader in Mississippi who was forced to give birth after becoming pregnant as the result of an assault. She was unable to obtain an abortion, despite Mississippi’s purported exception for victims of rape or incest. Although the story was reported on previously, it is worth raising again as it both highlights the abject cruelty of abortion bans and illustrates the very real consequences of unworkable “exceptions” and how those consequences fall the hardest on already marginalized communities. A GoFundMe has been set up for the family and is available here. 

Legal Analysis:

• Mifepristone Oral Argument: 

• The Supreme Court heard oral arguments this week in Alliance for Hippocratic Medicine v. FDA, the case that will determine the future of medication abortion in the U.S. 

• This case began in 2022 when the Alliance for Hippocratic Medicine (“AHM”) and other Plaintiffs represented by the Alliance Defending Freedom filed suit in the Northern District of Texas, Amarillo Division. AHM was incorporated in 2022 in Amarillo, just months before bringing the present litigation. Notably, none of AHM’s member organizations reside in Amarillo, or even in Texas. However, filing suit in the Amarillo Division guaranteed that the Plaintiffs would land in front of Judge Matthew Kacsmaryk, a Trump appointee and far-right conservative with a history of extreme anti-abortion and anti-LGBTQIA+ positions. Given the myriad problems with the Plaintiffs’ claims and their clear lack of standing to bring the lawsuit, the case’s survival relied upon landing in front of a highly sympathetic judge. 

• Judge Kacsmaryk effectively rubber-stamped the Plaintiffs’ claims, and through the litigation process, the case has made its way up from the District Court to the Fifth Circuit Court of Appeals, and finally to the U.S. Supreme Court. By the time it made it to SCOTUS, the Plaintiffs’ challenge to the initial 2000 FDA approval of mifepristone had been struck for falling outside of the statute of limitations, and the scope of the case narrowed to changes the FDA made to the regulations for mifepristone’s use in 2016 and 2021. These changes, including doing away with an in-person visit requirement, made the drug more accessible. Recent data shows that over 60% of abortions now occur through the use of medication. A ruling restricting mifepristone’s availability would devastate access, particularly for individuals living in maternity care deserts or states with abortion bans in place. 

• During oral arguments on Tuesday, the Justices focused heavily on the question of standing, or whether the Plaintiffs can show that the FDA’s actions have caused them injury. At the heart of this inquiry is the fact that the Plaintiffs in this case neither take nor prescribe mifepristone, and federal conscience protections allow them to object to providing any medical care that violates their personal beliefs. In the absence of direct harm, the Plaintiffs’ primary theory of standing relies on a heavily speculative chain of hypothetical events. Specifically, they would have to show that a pregnant person took mifepristone, that person then suffered a complication (which is exceedingly rare), that they then went to the emergency room and happened to be assigned to one of these particular doctors, that the doctor asserted conscience objections, and that those objections were then ignored, forcing the doctor to incur a moral injury. Unsurprisingly, throughout the course of litigation, the Plaintiffs have failed to produce a single instance where this series of events has materialized, a fact that their attorney all but conceded during arguments. 

• In addition to showing injury, the Plaintiffs must also show that their alleged harm is traceable to the challenged conduct–here, the FDA’s treatment of mifepristone in 2016 and 2021. They cannot do so. The FDA’s regulations do not compel these plaintiffs to do or refrain from doing anything; they merely state the safe conditions of use for the drug. If, for example, the Plaintiffs were able to point to a time wherein they had been forced to provide treatment over asserted conscience objections, that harm would flow to their hospital or institution–not to the FDA itself. 

• During arguments, the Justices, including several of the conservative Justices, seemed broadly skeptical of the plaintiffs’ standing arguments, honing in on the question of whether a plaintiff had ever actually been forced to provide care despite their conscience objections. Justice Gorsuch also raised concerns about granting broad universal relief to remedy speculative harm allegedly suffered by a tiny handful of doctors. Although the Justices primarily focused on standing, the merits of the case were raised on a few occasions. Justice Jackson, for example, inquired about the propriety of non-expert Judges weighing in on complex questions of medical safety, citing Judge Kacsmaryk’s heavy reliance on several now-retracted studies.  

• Justices Alito and Thomas seemed the most willing to accept the Plaintiffs’ theory of the case. Both Justices questioned Solicitor General Elizabeth Prelogar vigorously about how the FDA can be held accountable if these Plaintiffs do not have standing and raised the specter of the Comstock Act. Comstock, a 151-year-old law passed under Ulysses S. Grant’s administration, bans the mailing of goods used for abortions. However, the law has not been enforced in many decades and has long been considered functionally dead. And, the Department of Justice, the Agency charged with enforcing Comstock, has issued a memorandum explaining that it does not apply to the mailing of materials related to lawful abortions. Despite this, the Plaintiffs insist that the Comstock Act applies, and experts warn that if Trump is reelected in 2024, he will likely resurrect the law and functionally ban abortion without the need to pass a national abortion ban through Congress. 

• We do not know exactly when the Justices will issue their ruling; however, it is likely to come in early summer, before the Court’s term ends in June. Based on what we heard in the arguments, it seems plausible that the Court will reject the case on standing grounds. And, the Justices may be hesitant to further restrict abortion access in an election year, given the clear galvanizing effect that reproductive rights have on progressive voters. Regardless of how much logic dictates the dismissal of the case, however, it is critical to remember that this is the exact same Court that overturned Roe.  And, the mere fact that the Plaintiffs’ case made it this far with partial or wholesale approval from the lower courts is reason enough for skepticism. 

• If the Court does choose to reject the case on standing grounds, it is likely not the end of the legal fight over mifepristone. Judge Kacsmaryk has already granted several conservative states permission to intervene at the District Court level, which could allow them to revive the case on their own theory of standing. And as mentioned above, a change in presidential administration could have drastic consequences for the availability of the drug. 
  This case marked the first time since Dobbs that abortion has made it to the Supreme Court, but it won’t be the last. Next month, the Justices will hear arguments in Idaho v. U.S., a case challenging whether the federal Emergency Medical Treatment and Labor Act (EMTALA) preempts conflicting state abortion bans.

More News in Access: 

• Oklahoma’s abortion trafficking bill has passed out of the House and into the Senate. With the Republican majority in the state Senate, the bill stands a very good chance of passage, which would make Oklahoma the second state to criminalize “abortion trafficking.” 

• Amidst ongoing litigation over the State’s abortion bans, the Texas Medical Board has proposed guidance for providers; however, it fails to meaningfully contend with the ambiguity created by the laws. The proposed rules state that a doctor can provide an abortion if they deem it medically necessary using reasonable medical judgment. This language gives providers little to no additional clarity about when they are able to intervene to help their patients. The proposed rules also require providers to document in detail their reasoning for determining that a medical emergency exists. In a state with an Attorney General eager to prosecute for abortion-related offenses and a bounty hunter law in place, documentation requirements are cause for concern. 

• Advocates in Florida have been fighting to get abortion on the ballot for the State’s November election. Last month, the Court heard oral arguments on whether the language of the referendum is sufficiently clear. The Court has not yet issued its ruling, and it must do so prior to April 1st if the initiative is going to appear on the November ballot. 

• There are two open seats on the Montana Supreme Court, and there is every reason to believe that these elections will center heavy discussion about abortion rights. Currently, abortion is legal in the state until ‘viability;’ however, Republican Governor Greg Gianforte has aggressively tried to curtail access since the overturn of Roe. 

• South Dakota Governor Kristi Noem has signed a bill allowing individuals to withdraw their signature from a ballot initiative after the fact; opponents of this bill argue that it is a transparent attempt to interfere with the abortion rights ballot initiative that is currently making its way to the State’s voters. 

• Missouri’s Attorney General is defending his lawsuit against Planned Parenthood, wherein he alleges that Planned Parenthood has assisted minors out of state to obtain abortions without their parents’ knowledge or consent. In discussing the lawsuit, A.G. Bailey described Planned Parenthood as “a lawless cult of death with a documented pattern of willful refusal to comply with state statutes.” 

• On the heels of the disastrous Alabama Supreme Court decision determining that frozen embryos were unborn children for the purpose of state law, North Carolinians are urging their state legislature to step in and proactively protect IVF. 

• Planned Parenthood affiliates are training abortion doulas to provide support for patients in an increasingly stigmatized landscape for reproductive rights.

• Some experts say that the fetal personhood movement is increasingly creating a rift between anti-abortion activists and the Republican party, two historically aligned groups. 

• Wyoming has banned gender-affirming care for minors, making it the 23rd state to ban or severely curtail access to treatment. 

• New data shows that medication abortion now accounts for about 63% of all abortions nationwide. The availability of telehealth for abortion care has significantly contributed to this rise. 

• An alarming new report out of Louisiana shows how standard pregnancy care, including treatment for miscarriage and ectopic pregnancy, has suffered as a result of the State’s abortion ban. 

REPRODUCTIVE HEALTH DIGEST (3/14/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest covers newly proposed and passed legislation in several states, the future of mifepristone in pharmacies, how abortion politics are shaping the presidential race, and many more pieces of critical reproductive health news. We are also introducing a ‘must-read’ piece into each Digest, uplifting a story that provides essential context or insight on the current fight for reproductive rights. Please read on for more information.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Legal Changes at the State Level: 

This Week’s Must Read: This week, we are highlighting this piece from Time. The story of Kate Cox, the Dallas woman who sued Texas for the right to an abortion in the face of a devastating fetal diagnosis and was denied, has struck a nerve with Americans across the political spectrum. Time released this piece explaining how exceptions to abortion bans have never been sufficient to protect the lives and health of pregnant people and paralleling Ms. Cox’s story with Sherri Chessen’s nearly identical story from 1962. 

• Brief Overview: 

• Alabama: In the wake of the disastrous state Supreme Court ruling finding that frozen embryos are unborn children under the law, Alabama lawmakers have rushed through a bill purporting to protect IVF access in the state. With alarm bells raised about the impact of fetal personhood on access to fertility treatment and contraception, other states are scrambling to modulate their responses and handle their own proposed fetal personhood laws.  

• State of the Union: Abortion policy was front and center at the State of the Union address last week, with several democrats inviting women directly impacted by restrictive abortion bans as their guests and President Biden highlighting his administration’s desire to restore the protections of Roe v. Wade. Although alleviating the crisis created by Dobbs is absolutely critical, abortion rights advocates are urging the President and his administration to do more than merely restore Roe. Roe was never enough to protect access to reproductive care for everyone, and this moment provides an opportunity to envision a safer and more equitable future. After a number of state-level victories for abortion in 2023, the issue continues to poll as a high priority for many voters in the upcoming presidential election. Although Donald Trump has wavered on whether or not he would support a national abortion ban, his major supporters are certainly urging him to do so, and he continues to tout the overturn of Roe v. Wade as one of the major accomplishments of his administration.

• Mifepristone:  Mifepristone, one of two drugs typically used in a medication abortion, will now be sold in certain CVS and Walgreens pharmacies, in states where it is legal to do so. This marks a massive regulatory change in the distribution of the medication.  

• Kansas: The Kansas legislature has introduced a series of anti-abortion bills aimed at further tightening access to the procedure in the state; these bills are emblematic of the types of legislation being proposed in state sessions across the country. 

Deeper Legal Analysis 

• Alabama and Fetal Personhood: 

• In our last Digest, we reported on the Alabama Supreme Court’s ruling that frozen embryos were minor children for the purpose of the state’s wrongful death of a minor law. This unprecedented ruling caused IVF providers in the state to immediately cease services and sent shockwaves of anger and concern throughout the country. The Court’s decision was indeed shocking, particularly in light of its heavy and open reliance on Christian ideology and subjective religious interpretation. But, reproductive rights advocates have long warned that fertility treatments and contraception are the next targets of the anti-abortion movement. Experts who predicted the overturn of Roe were dismissed as cynical and alarmist, until it happened. Post-Roe, those same experts have been criticized for their warnings that other aspects of reproductive health care are already at risk. Once again, they have been proven unfortunately right, serving as a reminder that threats to bodily autonomy must be taken seriously, and we cannot rely on the protections of the past.
  
  Last week, Alabama responded to the Court’s ruling by rushing through a bill purporting to temporarily protect IVF. The bill’s sponsors openly acknowledge that it is merely a stopgap measure aimed at reopening IVF clinics in the wake of the decision. The bill grants IVF providers immunity from civil and criminal liability, theoretically allowing them to resume services without fear of penalty. However, it entirely sidesteps the question of whether embryos are considered minor children under Alabama law, a question that has far-reaching consequences for nearly every aspect of reproductive medicine. And, the law’s creation of near-total immunity for providers creates new problems of its own. No aspect of the medical profession is granted blanket immunity for actions related to medical practice. This law seems to make an exception to that rule for IVF providers, depriving families of meaningful legal recourse for losses related to their frozen embryos. IVF is an extremely financially and emotionally taxing process, the question of whether families should have legal options when losses occur is not controversial. However, remedying those losses by defining frozen embryos in such a way that eliminates access to IVF in the state altogether is not a reasonable solution. 
  
  In response to the Alabama ruling and subsequent legislation, other states have scrambled to stake out their own positions and decide how to handle pending and already-passed fetal personhood laws. Currently, about one third of U.S. states. have fetal personhood laws on the books. You may recall that in our previous Digest, we reported on a proposed anti-abortion law in Oklahoma that would have consequences for contraception, fertility treatments, and reproductive health privacy. The sponsor of that bill has now added amendments clarifying that IVF would not be implicated, eliminating the section of the bill that would have created an abortion database and allowing for the use of emergency contraceptives and IUDs. However, the proposed bill still uses fetal personhood language like “unborn child” and “unborn human” in place of the actual scientific and medical terms for various gestational stages, raising concerns about its potential consequences for reproductive medicine. 
  
  In Iowa, another fetal personhood bill is moving forward. This bill would increase the criminal penalties and jail time for terminating a person's pregnancy without their consent and redefine the fetus as an unborn child. The law has raised concerns over its definition of an unborn person as beginning at fertilization. Defining pregnancy as beginning with fertilization, rather than implantation, has huge implications for common forms of birth control and fertility treatments and is a key strategy in the fetal personhood movement.

• Mifepristone: 

  • Mifepristone, one of two drugs typically used in a medication abortion regimen, will soon be available in major pharmacies for the first time in U.S. history. Medication abortion, which is currently approved for up to 10 weeks into pregnancy, is the most commonly used abortion method in the U.S. The safety record of the drug, including when prescribed through telehealth, is nearly unimpeachable. As the American College of Obstetricians and Gynecologists reports, complications occur in less than 1% of patients, with serious complications occurring in less than .3% and the risk of death being effectively nonexistent. 
    
    Under previous FDA regulations, the drug had to be both prescribed and dispensed by the physician. Under the new policy, certified providers will prescribe the drug, and patients will then be able to obtain it from their local pharmacy in the same way as they would any other prescribed drug. Ideally, this will increase the number of prescribers of the medication, expanding access for patients. Of course, mifepristone will only be stocked in pharmacies in states where it is legal to do so, and initially, both CVS and Walgreens will be dispensing from only a limited number of pharmacies even within access states. However, the move to certify pharmacies to dispense the medication will hopefully allow pregnant people who are unable to safely receive medication abortion to their home address or who may be experiencing unstable housing conditions to have an additional option for care. 
    
    Of course, if you read this Digest regularly you already know that mifepristone will be going before the Supreme Court later this month. Depending on how the Court rules, access to the drug could be severely limited, and the regulatory framework of FDA decision-making could be upended. However, this latest move by major pharmacies to dispense mifepristone sends a powerful signal that they believe the medication should be treated in the same way as any other FDA-approved drug.
    
    

• Kansas:

  • Kansas legislators have proposed a series of severe anti-abortion bills during the State’s 2024 legislative session, and advocates are pushing back. Although Kansas is far from alone in its proposals, the state provides a good case study on the types of bills being advanced in anti-abortion legislative circles across the country. 
    
    Kansas’ proposed legislation ranges in subject matter from fetal personhood laws to funding for crisis pregnancy centers, but one of the bills that has received the most criticism is H.B. 2749. If implemented, H.B. 2749 would require abortion providers to ask their patients invasive questions about their reasons for seeking an abortion and report their answers to the state. The questions, including ones about whether the abortion is being sought because of the pregnant person’s career or because they think they already have enough children, are entirely medically unnecessary and represent an inappropriate intrusion into personal decision-making. 
    
    Another pair of bills, H.B. 2789 and H.B. 2809 would divert state funds to promoting childbirth in the face of unplanned pregnancies and require the state treasurer to coordinate with pregnancy centers to provide supplies and information about adoption. And Senate Bill 498 would explicitly require the state to support crisis pregnancy centers and maternity centers by providing a 70% tax credit beginning this year. 
    
    Kansas lawmakers are also proposing a series of fetal personhood bills, including H.B. 2653 and S.B. 435, which would allow for child support beginning at conception. Although proponents of these laws insist that they are intended to support pregnant people, in reality, they are a flagrant backdoor attempt to attach legal rights to an unborn fetus and incorporate those rights into existing systems of law, like the family law system. 
    
    Abortion went before Kansas voters in 2022, in the first Post-Dobbs ballot initiative. And, voters resoundingly rejected a proposed constitutional amendment that would have allowed lawmakers to ban abortion in the state without exception. Despite this decisive statement from Kansans, lawmakers continue to push to further restrict access in the state.

What else is happening in access? 

• This past week, the Nebraska Supreme Court heard oral arguments in the case challenging the State’s hybrid gender-affirming care and abortion ban. Attorneys challenging the law argue that it violates the state constitution’s rule that all legislation must only cover a single subject. 

• The first over-the-counter birth control pill will soon be available in stores across the U.S. 

• Missouri Republicans have introduced an extreme law that would prohibit state public and private medical schools from providing abortion training or partnering with out-of-state institutions to provide such training. If passed, this bill will severely diminish providers' preparedness to act in an emergency situation where an abortion is necessary and will inevitably worsen the maternal mortality crisis in the state. Bills like this one further Republican-led efforts to expand their states’ abortion bans beyond their own borders. Providers trained in Missouri may go on to practice medicine in other states during their career, and without full spectrum medical training, they will be unprepared to do so and the country will lose out on critical maternal health experts. 

• Wyoming is set to implement a gender-affirming care ban for minors, making it the twenty-third state to do so. 

• The Guardian has published a stirring piece on the lives lost to the Dominican Republic's total abortion ban; it is a jarring reminder of the medical necessity of safe and accessible abortion care. 

• A Judge has temporarily blocked Texas Attorney General Ken Paxton’s demand that PFLAG, an LGBTQ+ organization, turn over records relating to minors who have received gender-affirming care. 

• As we wrote about in the last Digest, Alabama’s IVF ruling is not only devastating for fertility treatment, but it also gives dangerous credibility to a fetal personhood movement that would see common forms of birth control and emergency contraception banned.  

• Tennessee woman Mayron Hollis allowed ProPublica to follow her family for a year after she was denied an abortion despite a severely dangerous pregnancy; the piece highlights the struggles that followed. 

• France has become the first country to officially enshrine abortion rights into the country’s Constitution. 

• An investigation has found that a major U.S. pharma group that filed briefs opposing further restrictions on mifepristone also gave $125,000 to the Republican Attorneys General Association, a group made up of Attorneys General who have largely formally opposed access to the drug. 

• Opponents of Arizona’s proposed abortion ballot initiative are engaged in ‘decline to sign’ efforts aimed at directly deterring citizens from supporting the measure; these person-to-person campaigns is important for anti-abortion groups in the state, because Arizona lacks the political power–like a Republican Attorney General–that allowed institutionalized state-level push back to abortion ballot initiatives in other states like Ohio. 

• In Montana, a judge has ruled three laws unconstitutional, key among them is a would-be ban on abortion after 20 weeks gestational age. The lawsuit was originally brought in 2021, and the challenged laws were not in effect at the time of the ruling. 

• The South Dakota bill aimed at allowing petition signers to later remove their signatures from a ballot initiative now goes to the Governor’s desk for her signature. This bill has been criticized as the latest Republican attempt to disrupt direct democratic efforts to protect abortion rights. 

• The U.S. Judicial Conference has adopted a new policy aimed at eliminating the practice of “judge shopping”, wherein litigants will deliberately bring their case before judges favorable to their cause. The most prominent recent example of this is the case challenging mifepristone, wherein the plaintiffs filed suit in the Amarillo Division of the Northern District of Texas, where it was guaranteed to land on the desk of extreme anti-abortion judge Matthew Kacsmaryk. 

• New polling out of Missouri shows that voters support an abortion rights ballot initiative by a narrow margin.
  

REPRODUCTIVE HEALTH DIGEST (2/29/24)

Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we discuss the Alabama Supreme Court’s ruling limiting access to IVF, proposed legislation that would restrict access to contraception and abortion, efforts to undermine direct democracy in states attempting to pass abortion-protective ballot initiatives, and many other critical news stories. As always, we cannot include everything in our detailed legal analysis, so be sure to read our ‘More News in Access’ section to stay up to date on all of the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Legal Changes at the State Level: 

• Brief Overview: 

• Alabama: In an unprecedented moment for the fetal personhood movement, the Alabama Supreme Court has issued a ruling finding that cryogenically frozen embryos are “children” under state law, throwing the legality of fertility treatments like in vitro fertilization (IVF) into question and causing Alabama providers to cease offering IVF services. 

• Oklahoma: The Oklahoma legislature has proposed a series of bills that, taken together, would criminalize “abortion trafficking”, make it more difficult to access emergency contraception and other kinds of birth control like IUDs, and further limit access to medication abortion. 

• AHM. v. FDA Update: The U.S. Supreme Court denied Kansas, Missouri and Idaho’s motion to intervene in the ongoing appeal challenging the legality of the FDA’s regulation of mifepristone. This is an important win, because one of the key arguments on appeal is whether the plaintiff medical practitioners have standing to bring the case at all. And, if the states had been permitted to join the appeal, they could use their own standing arguments to keep the case alive if the Supreme Court finds that the original plaintiffs lack standing. Although the States are not permitted to intervene in the appeal, Judge Matthew Kascmaryk allowed them to intervene in the original case at the District Court level. 

• Missouri and South Dakota: Ballot initiatives to protect certain abortion rights are underway in Missouri and South Dakota. However, both states’ legislatures are taking steps to make it more difficult for the initiatives to pass, even if they have popular support amongst a majority of citizens. 

• Wisconsin: In Wisconsin, Planned Parenthood is asking the State Supreme Court to issue a ruling invalidating an 1849 abortion ban and affirming that abortion is protected under the State Constitution. In 2023, Dane County Circuit Judge Diane Schlipper ruled that the 1849 law does not ban “consensual abortions” but only prohibits the assault of a pregnant person with the intent to kill a fetus. On February 20th, Sheboygan County D.A. Joel Urmanski appealed that ruling directly to the state Supreme Court, asking it to take the case without waiting for a ruling from the appellate court. Whatever procedural route it may take,  the 1849 law will end up before the majority-liberal state Supreme Court this year.
  

Deeper Legal Analysis 

• Alabama: 

• The piece of reproductive health news dominating the headlines since our last Digest is, of course, the Alabama Supreme Court’s unprecedented ruling that frozen embryos are ‘children’ within the meaning of the law. The lawsuit was brought by three Alabama couples, each of whom had cryogenically frozen embryos at the Mobile Infirmary Medical Center. Those embryos were unfortunately destroyed when a patient at the facility entered the embryonic lab, removed several embryos, and dropped them on the floor. The families sued for wrongful death of a minor, and the trial court dismissed the claim on a finding that the statute does not apply to frozen embryos. The plaintiffs appealed, and the State Supreme Court reversed course, making the stunning determination that these embryos are children under the relevant law. 
  
  Throughout the majority opinion, Justice Jay Mitchell repeatedly referred to the embryos as “extrauterine children,” a seemingly made-up term to describe embryos that have not been implanted. In a concurring opinion, the Chief Justice repeatedly invoked his interpretation of Christian doctrine, citing directly to the Bible and relying on theological texts. Despite the Court’s sweeping declarations about the sanctity and protection of unborn life, the effect of the Court’s ruling is to devastate access to in vitro fertilization for Alabamians hoping to grow their families. 
  
  IVF is an extremely complex, financially taxing, and oftentimes deeply emotional process for the families going through it. An IVF cycle usually involves the creation of multiple embryos, of which some will not survive as a natural result of the human fertility process, and others may be frozen to preserve for possible later use or discarded based on their nonviability. Given this complexity, the Alabama ruling calls into serious question how doctors can continue to offer the treatment if the destruction or loss of an embryo is considered the death of a child under state law.  As the lone dissenting justice put it: the ruling “almost certainly ends the creation of frozen embryos through [IVF] in Alabama.” Since, the ruling at least three facilities have ceased providing IVF treatment to their patients out of the justifiable fear of facing unpredictable legal consequences.  
  
  The ruling has faced intense and immediate backlash from healthcare providers, politicians, and advocates across the country. In response, Alabama legislators have proposed a series of bills to attempt to protect IVF access. The bills range from providing immunity from civil or criminal prosecution for healthcare related to IVF, to a bill expressly excluding extrauterine embryos from the definition of a child or person. The state Legislature’s rushed efforts to insulate IVF from the Supreme Court’s ruling may mitigate some of the harm that has already been done, but they also highlight the absurdity of the Court’s actions and put a glaring spotlight on the consequences of allowing medical decisions to be made by non-expert judges and legislators. 
  
  Outside of Alabama, the ruling also sounds alarm bells for individuals concerned that other states may follow suit. Amanda Zurawski, a plaintiff in the Texas case challenging the State’s exceptions to its abortion ban, has stated that she will move her frozen embryos out of Texas for fear that Texas may take steps to limit access to IVF. In Florida, lawmakers have halted a Republican-led bill that would have defined fetuses as “unborn children,” amid rising concern over the impact it would have on fertility treatments. 
  
  Advocates have long argued that fertility treatments and access to contraception are the next targets of the anti-abortion movement. The Alabama Supreme Court’s ruling is a stunning validation of that concern. Fetal personhood laws–laws that seek to grant fetuses and embryos full and equal rights under the law–are a powerful way that anti-abortion activists and lawmakers are working to limit access to reproductive healthcare without explicitly passing wildly unpopular bans or restrictions. 

• Oklahoma: 

  • The Oklahoma legislature  has been extremely active in proposing anti-abortion bills this legislative session. Although it is not yet clear how many will pass and what their final language will be, the series of bills, taken together, could severely restrict access to abortion, contraception, and fertility treatments.
    
    One bill, HB 3216, has raised concerns about access to both emergency contraceptives like Plan B and intrauterine devices (IUDs). The bill was introduced by Republican Rep. Kevin West, who crafted it with assistance from the Alliance Defending Freedom, the anti-abortion group behind the federal case challenging the legality of medication abortion. In its current form, the bill defines pregnancy as beginning at fertilization, rather than implantation, and would ban any form of contraception that may interfere with implantation. State Representative Trish Ranson expressed her concern that, if passed in its current form, the highly restrictive language of the bill would effectively ban IUDs and emergency contraception.  When questioned about these concerns, Rep. West said that the bill was intended to target “over-the-counter items that are not always safe for everybody.” Notably, Plan B–the ‘morning after’ pill that anti-abortion groups falsely claim causes abortions–is an over-the-counter medication. The bill also includes strict reporting requirements for physicians, which have raised concerns about the creation of a statewide ‘database’ of pregnant people who have obtained an abortion. 

    Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban. 

    In addition to proposing a trafficking law for medication abortion, Oklahoma is following Idaho’s lead in attempting to pass a so-called “abortion trafficking” law. SB 1778 uses broad language and targets anyone who would help a minor go out of state to obtain an abortion without the consent of their parent or guardian. This would mean that a trusted friend or relative would be charged with trafficking, regardless of the pregnant person’s own consent to the abortion and related travel. 

    As legislative sessions progress, it is critical to be mindful that although outright abortion bans may not be passing at the rate that they did in 2023, lawmakers are quietly introducing bills that radically restrict access to all aspects of reproductive care–Oklahoma is far from alone in this effort..
    

• Missouri and South Dakota: 

  • Efforts to enshrine abortion rights into the state constitution in Missouri and South Dakota are being met with anti-choice efforts to stymie the democratic process.
    
    In Missouri, the road to the ballot box is proving to be a long one, with advocates debating what kinds of protections to include in a ballot initiative and anti-abortion lawmakers attempting to block any pro-choice measure from moving forward. The latest opposition comes in the form of a Republican-led effort to make it more difficult to amend the State Constitution. Under current Missouri law, a ballot initiative only needs a majority vote statewide in order to pass. However, the State senate has passed a measure that would require both a majority statewide vote and a majority vote in five of the State’s eight congressional districts. This measure will now go before the Republican-controlled House. If the proposal passes through both chambers of Congress, it will then go to the  voters. Some Republicans are reportedly hoping the proposal will appear on the August ballot and be passed in time to block efforts to enshrine abortion rights into law in November. Missouri’s attempt to raise the threshold for the passage of abortion rights mirrors the unsuccessful attempt by anti-choice lawmakers in Ohio to do the same last year in the face of an abortion ballot initiative. 
    
    Missouri is currently enforcing a total abortion ban. And, on Thursday, February 29th, Attorney General Andrew Bailey announced that he has filed a lawsuit against Planned Parenthood accusing it of ‘trafficking’ minors out of state to obtain abortions, highlighting the urgency of enshrining abortion protections into state law. 
    
    South Dakota advocates are also working to get abortion rights on the November ballot, and they reportedly have already exceeded the 35,000 signatures needed to  do so. Abortion is currently completely banned in South Dakota, with only narrow exceptions for the life of the pregnant person. If passed, the amendment would prohibit the state from interfering with first-trimester abortions, and allow the state to regulate second-trimester abortions if the restrictions were reasonably related to the health of the pregnant person. The measure would permit the state to prohibit abortions in the third trimester. However, State Republicans have called the measure – which effectively adopts the Roe standard – too extreme to be allowed to pass. 
    Republicans in the South Dakota House have adopted a resolution formally opposing the ballot initiative, claiming that this was necessary in order to keep the public informed on the full impact of the ballot measure. House lawmakers have now also passed a bill that would allow petition signers to remove their signature after the fact, despite protections already being in place to protect the signature-gathering process from any improper interference. These efforts are the latest in a series of Republican-led attempts to block abortion ballot initiatives, likely in response to their popular passage in other states.

What else is happening in access? 

• A May trial has been set in a federal lawsuit challenging North Carolina’s requirements that 1) a provider verify the intrauterine location of a pregnancy prior to administering a medication abortion; and 2) that abortions performed after 12 weeks take place in a hospital setting. 

• The Supreme Court will contend with the question of how far state abortion bans may go when it hears oral arguments on April 24 in Idaho v. United States. The case asks whether EMTALA’s emergency stabilization requirements preempt conflicting state abortion bans. 

• The possibility of a federal abortion ban is front and center in the ongoing presidential race. Although he previously did not express a stance, reports indicate that former President Donald Trump favors the passage of a 16-week abortion ban. Trump has consistently touted the overturning of Roe v. Wade as a major accomplishment of his presidency, and there should be no doubt of what a second term would mean for Americans’ reproductive freedoms. 

• Nebraska lawmakers and abortion opponents testified against amending the State’s 12-week abortion ban to include an exception for fatal fetal anomalies. Among other things, opponents of the exception argued that allowing pregnant people to consider abortion would rob them of their “dignity as a mother” and that fetal diagnoses are not always accurate. 

• Tennessee lawmakers have shot down a proposed amendment to the State’s abortion ban that would have allowed children under 13 years of age to obtain abortion care. 

• Dr. Caitlin Bernard is one of the last abortion providers in Indiana, her story, experience, and perspective on the realities of providing abortions in a legally hostile environment are invaluable. 

• Georgia lawmakers have launched a long-shot abortion ballot initiative, attempting to get the issue before voters in November. However, in Georgia, a ballot initiative requires the approval of 2/3 of both the House and the Senate–both chambers are held by Republicans at this time. 

• A Kentucky lawmaker has filed a bill that would amend the State’s ban to allow for abortion in cases of rape or incest in extremely narrow circumstances. 

• Idaho has asked the U.S. Supreme Court to allow it to enforce its gender-affirming care ban, passed in 2023. The law is currently blocked by a District Court order, while the litigation winds its way through the litigation process. 

• Advocates for bodily autonomy are currently fighting a two-pronged battle as they attempt to both overturn abortion bans and also mitigate their harm while the bans remain in place. Molly Duane, senior staff attorney at the Center for Reproductive Rights and counsel in Zurawski v. Texas explains what this strategy looks like. 

• Ballot measure efforts across the country are competing for limited funding, a critical component to success. 

• The Iowa Board of Medicine’s amended proposed rules for its currently-blocked 6-week abortion ban still fail to contend with the complex realities of pregnancy and the very real needs of providers attempting to provide patient care while navigating harsh limitations on their practice. 

• Research shows that mental health outcomes may be worsened in states with abortion bans or severe restrictions in place, likely reflecting the anxiety and lack of autonomy felt by those living under bans. 

• New data reaffirms that telehealth abortion is both safe and effective, despite anti-abortion arguments to the contrary. 

• Lawmakers in West Virginia are pushing to remove an already extremely narrow suicide-risk exception from the state’s current ban on gender-affirming care for minors. 

• Michigan’s Democratic Attorney General will not fight a lawsuit brought to remove the State’s 24-hour waiting period for abortion patients. 

• Despite Washington state’s strong abortion protections, concerns have been raised about how hospital mergers with religious institutions may impact access to care. 

• The Seventh Circuit has allowed Indiana’s gender-affirming care ban to go into effect.

• The Society of Family Planning reports that telehealth abortions now account for 16% of all abortions nationwide, highlighting their critical importance. 
  

REPRODUCTIVE HEALTH DIGEST (2/15/24)

Developments in Abortion, Autonomy, and Access: 

Reproductive rights law and policy are developing rapidly and in incredibly complex ways at both the state and federal levels. In order to accommodate the sheer volume of critical news, we are breaking from our normal Digest structure this week. Rather than taking a deep dive into a handful of key changes to the law, we have instead provided an overview of all of the top stories and legal developments, with the important context included. As we move forward through legislative sessions and an exceptionally important election year, we are constantly striving to find the most effective ways to consolidate and deliver the news that you need in a way that is accessible and efficient, and we always welcome any and all feedback from our readers!

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Reproductive Rights and Health Equity News:

• Florida:

• Last week, the Florida Supreme Court heard oral arguments about the propriety of ballot summary language for an initiative aimed at enshrining pre-viability abortion rights into the State constitution. Floridians Protecting Freedom, the coalition behind the ballot measure, has collected nearly 1 million signatures in advance of the deadline, exceeding the threshold necessary to satisfy state requirements. However, Florida Attorney General Ashley Moody has asked the state Supreme Court to block the initiative, arguing that the language used is unclear and too confusing to be put before the voters. 
  
  During oral arguments, the scope of the question on review was a narrow one: whether or not the proposed ballot summary was a fair and clear summary of the contents of the ballot measure itself. In other words–will the voters clearly know what they are voting for or against? The extremely conservative court appeared aware of their limited role in the question before them, repeatedly emphasizing that it was not one of ideology, but one of linguistic clarity. Whether or not the Justices feel abortion should be protected in the state of Florida does not enter the equation for the purposes of this particular fight. 
  
  The Justices seemed skeptical of the State’s argument that the ballot language is unclear. For example, although the Justices repeatedly used language borrowed from the anti-abortion movement, the Chief Justice also stated that “the people of Florida aren’t stupid, they can figure things out.” Chief Justice Muniz also referred to the initiative as “wolf that comes as a wolf,” rather than a wolf in sheep’s clothing, simultaneously indicating his negative feelings about abortion and his likely view that the ballot summary fairly represents the initiative’s contents. We will continue to report on this story as it develops. 
  
  Florida is one of several GOP-led states where advocates are attempting to get abortion on the ballot in 2024. The outcome of Florida’s initiative will impact abortion politics and access both within the state and throughout the rest of the country. 
  

• Missouri: 

• Missouri Republicans have blocked efforts to amend the State’s total abortion ban to include an exception for rape or incest. While some lawmakers seek to mitigate the harm of the existing ban, others stand by it in its current form. During debate over the proposed amendment, Republican state Senator Sandy Crawford explained her opposition by stating that while rape can be mentally taxing, “God is perfect” and “does not make mistakes.” 
  
  Lawmakers also debated Democratic Senator Doug Beck’s proposal to permit abortion for victims under 12 years old. This led to a heated debate during which Republican Senator Bill Eigel suggested that the amendment would permit 1-year-olds to obtain abortions. Of course, 1-year-olds cannot become pregnant, but these are the kinds of arguments that anti-choice legislators are making to justify their positions. 
  
  Debate about the scope of Missouri’s abortion laws is happening against the backdrop of efforts to enshrine abortion in the State’s Constitution, and counter-efforts to make doing so more difficult, including Missouri Right to Life setting up a ‘snitch line’ for citizens to report signature gatherers. 

• South Carolina: 

• A South Carolina woman has filed a lawsuit against the State, challenging its ban on abortion after detection of a fetal heartbeat. The State’s abortion ban prohibits abortion after “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart.” ‘Fetal heartbeat’ bills have been criticized for legislating based on medically inaccurate representations of when in pregnancy the human heart forms and begins to ‘beat.’ 
  
  Plaintiff Taylor Shelton argues that the language of South Carolina’s law is ambiguous because it is unclear whether it refers to the first detectable electrical activity, which occurs around six weeks, or the formation of the heart’s chambers, which does not occur until roughly nine weeks gestational age. Shelton was forced to travel out of state to obtain an abortion, because doctors in the state applied a narrow construction of the law and would not provide an abortion after 6-weeks. She urges the Court to resolve the ambiguity in her favor and find that the current law permits abortion until nine weeks into pregnancy. 

• Tennessee: 

• K Monica Kelly has joined other Tennessee women in directly challenging the State’s abortion ban, after being forced to travel out of state to obtain access. When Kelly learned that she was pregnant with her second child, she and her husband were initially thrilled; however, after a series of devastating fetal diagnoses, they made the difficult decision to terminate the pregnancy. As a result of Tennessee’s total abortion ban, Kelly was unable to obtain treatment in her home state. 
  
  Kelly’s experience navigating Tennessee’s abortion laws spurred her to join six other women in challenging the State’s ban, arguing that it is too narrow and that providers should be permitted to use their good faith medical judgment to determine when an abortion is necessary to treat a “critical or emergent health condition.” Similar cases brought directly by women who were denied abortions are being litigated in Idaho and Texas. 

• AHM v. FDA: 

• As the Supreme Court is set to hear oral arguments in the case challenging the legality of mifepristone for medication abortion, two key studies relied upon by lower courts have been retracted by the scientific journal where they first appeared. 
  
  Sage Publications retracted the studies after two subject matter experts conducted independent peer reviews in response to concerns raised by a reader about the studies’ validity and scientific rigor. The reviewers ultimately found that the studies suffered from fundamental problems that called into question their conclusions, which showed rates of mifepristone complications far higher than those reported in other studies. They also found that the authors of the studies failed to disclose existing conflicts of interest, despite the authors’ affiliations with anti-abortion groups that expressly advocate for the restriction of mifepristone and abortion generally. Although these studies were relied upon by the lower courts for the determination that the plaintiffs have suffered harm, the impact of the retraction on the ongoing litigation is likely to be minimal. The Supreme Court is not obligated to take the retraction into consideration, and the current Court has shown its willingness to rely on studies and voices that support its desired conclusion, to the exclusion of more credible data. 
  
  Oral argument in this case will be heard by the Supreme Court on March 26th. In advance of arguments, a multitude of groups and coalitions have come out in support of access to mifepristone, including a coalition of 24 attorneys general from across the country. The coalition’s brief argues that the Fifth Circuit’s ruling placing restrictions on access to the drug contradicts decades of data showing its safety and efficacy, and that limiting access to mifepristone goes against the public’s interest. 

• New Hampshire: 

• The New Hampshire House voted down a proposed bill that would have restricted abortion after 15 days, a point in pregnancy when it is all but impossible to know whether or not conception has occurred. Although the bill was unlikely to advance past the House, it is still important to watch what kinds of bills are being proposed. Proposed legislation reveals what lawmakers would be willing to do and pass, if they are able to garner the political capital to do so. The political makeup of state legislatures can change in any given election cycle, and the viability of such proposed legislation changes along with it. 
  

• West Virginia:

• GenBioPro, the manufacturer of generic mifepristone, has filed an appeal with the Fourth Circuit, challenging West Virginia’s total abortion ban. At present, West Virginia bans abortion at all gestational ages, with extremely narrow exceptions, and it prohibits the use of medication abortion outside of those exceptions. 
  
  GenBioPro is urging the Court to overturn this prohibition on the grounds that the State’s law is preempted by federal regulations on the use of mifepristone. GenBioPro argues that the drug’s safety record is well documented and scientifically sound, and that West Virginia’s imposition of additional restrictions over what federal law requires violates the Constitution’s mandate that federal law act as the supreme law of the land. The outcome of this case will likely inform other states’ decisionmaking about whether to specifically limit access to medication abortion. And, the fight over access comes as the Supreme Court prepares to hear oral arguments in a case that will determine the future availability of the drug. 

• Fetal Personhood Laws: 

• Despite popular support for abortion rights nationwide, lawmakers are continuing to propose legislation limiting reproductive freedom, including fetal personhood laws. Fetal personhood laws seek to define life as beginning at fertilization and endow fetuses and embryos with all the rights and protections of a person. They can be used as a backdoor way to restrict reproductive freedom and change the law on abortion by changing how personhood is defined. 
  
  In Kansas, lawmakers have proposed a bill that would allow pregnant people to claim child support throughout pregnancy, from the time of conception. To accomplish this, the law would change a Kansas family law statute to include an embryo at any gestational age in the definition of a child. Supporters of the bill purport to be interested in providing support systems for pregnant people. However, the reality is that fetal personhood laws intentionally pave the way for future restrictions on bodily autonomy and do so without drawing the public backlash created by explicit abortion bans.
  
  Kansas lawmakers are not alone in their push for fetal personhood. Iowa lawmakers proposed a bill last week that would make causing the death or serious injury of an “unborn person” a class A felony, equal to first-degree murder in the State. Although the crime of harming a pregnant person is horrific, the bill would enshrine fetal personhood into state law and define an “unborn person” as having equal rights in the Iowa code. Prosecution of crimes against pregnant people can be (and is) accomplished by prosecuting the crimes on their own terms, without using the stories of victims as cover to pass anti-choice laws. 
  
  In Missouri, lawmakers have proposed their own version of a fetal personhood law. The bill would require a court to consider custody disputes over frozen embryos in favor of the party most likely to use the embryos to create a child. This kind of bill raises concerns over applying legal standards like the ‘best interest of the child,’ which is typically used in custody disputes, to unborn embryos. It also creates issues around consent by allowing a court to grant custody of an embryo to one parent, without the other genetic parent consenting to the use of that embryo to create a child. 
  

• Jackson, Wyoming: 

• Jackson, Wyoming has an abortion provider again–at least for the time being. At present, abortion is legal in Wyoming until ‘fetal viability,’ while the State’s attempted total abortion ban is on hold due to litigation. Despite the legality of abortion, however, providers who are willing and able to perform the procedure have been sparse. Dr. Katie Noyes’ story highlights why. 
  
  Although Dr. Noyes was willing and able to provide abortions in accordance with state law, her hospital told her last December that she could not provide medication abortions due to legal concerns. Dr. Noyes explained that the legal team had concerns over its doctors medical licensure or potential retroactive prosecution if the State’s total abortion ban was to go into effect. However, Dr. Noyes pushed back, reminding her hospital that the care that she would provide is absolutely legal in Wyoming at this time. As a result of her advocacy, her hospital reversed course, permitting her to provide care. At a moment when state abortion laws are constantly changing and purposely opaque, the responsibility to advocate for access all too often falls on the shoulders of individual providers. Clarity from lawmakers and support from hospital decision-makers is desperately needed. 
  

• Virginia:  

• In Virginia, where abortion is currently permitted until roughly the third trimester, lawmakers voted down a bill that would have banned abortion in all cases except to save the life of the pregnant person. Virginia currently has a Republican Governor who openly supports the passage of a 15-week abortion ban. However, last year Virginia Democrats managed to retain control of the Senate and flip control of the House. This retention of control allowed them to safeguard abortion rights in the State, a key access point for patients in the South. 
  

• Michigan: 

• Although Michigan protects abortion under the State’s Constitution, plaintiffs in the state have brought a lawsuit to challenge medically unnecessary laws that are still on the books, including 24-hour waiting periods and mandatory counseling requirements. The lawsuit was filed on Tuesday on behalf of the Northland Family Planning Centers and Medical Students for Choice. 

• New Study on the Impact of Abortion Bans on ObGyns: 

• In Wyoming, litigants challenging the State’s abortion ban have submitted a new study about the impact of abortion bans on ob-gyns. In addition to highlighting the negative impact of bans on the quality of patient care, the study also identified personal impacts on providers. These impacts included feelings of fear and worry over prosecution or loss of licensure, and consideration of moving out of state in order to continue practicing medicine. The study provides important insight into how restrictive legislation affects medical practitioners and their ability to provide the care that they are trained to give. 

• Location Data Shared: 

• An investigation conducted by Oregon Senator Ron Wyden revealed that a location data company tracked visits to 600 Planned Parenthood locations and provided that data to an anti-abortion ad campaign. Although location tracking for the purpose of targeted advertising is nothing new, the scope of this particular campaign is significant. And, data privacy for individuals seeking reproductive healthcare has taken on new importance as anti-choice states seek to aggressively investigate and curtail efforts to obtain abortion services and information. 

REPRODUCTIVE HEALTH DIGEST (2/1/24)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest is full of important state-level news, as legislative sessions take shape, litigation progresses, and ballot initiatives advance across the country. There is a lot to cover, particularly in our ‘Other News in Access’ section, so please read on for the reproductive health news that you need to know. As a quick housekeeping note, starting this week we will be switching up our normal Digest schedule to publication on Thursday rather than Friday. From all of us here at L4GG, thank you for your continued readership and support of our work! 

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

Legal Changes at the State Level: 

• Brief Overview: 

  • Alliance for Hippocratic Medicine v. FDA: The U.S. Supreme Court has set oral argument in Alliance for Hippocratic Medicine v. FDA for March 26, 2024. The outcome of this case will impact the availability of medication abortion nationwide. The DOJ is urging the Court to preserve access, pointing to the drug’s excellent safety record, while the anti-abortion groups behind the lawsuit argue that medication abortion is dangerous and its use should be curtailed and highly regulated. 

• Wisconsin: Wisconsin lawmakers have proposed a referendum to institute a  14-week abortion ban in the state. At present, abortion is legal until around 20 weeks gestational age. 

• Abortion Trafficking in Oklahoma and Tennessee: Lawmakers in both Oklahoma and Tennessee have introduced abortion trafficking bills, following in Idaho’s legislative footsteps. 

• North Dakota: A North Dakota judge has declined to block the State’s total abortion ban for cases where a physician uses their good faith medical judgment to determine that an abortion is necessary to avoid high-risk complications.  The plaintiffs in the case argue that the ban’s exceptions are too narrow and do not comply with the State Constitution.
  

Deeper Legal Analysis 

• Wisconsin: 

• Current Wisconsin law permits abortion until around 20 weeks gestational age; however, state lawmakers have proposed a referendum to institute a  14-week ban in the state. The measure has been passed by the State Assembly and will now go to the Republican-controlled Senate for approval. It will then go before Governor Tony Evers, who has vowed to veto it, stating that the people of Wisconsin have already made their views on abortion clear. If, however, the measure makes it past a veto, it would be voted on by the citizens during April elections, requiring a majority vote to pass. 

• The proposed bill would prohibit abortion after 14 weeks absent a narrowly defined “medical emergency.” It would also mandate that in cases of medical emergency after 14 weeks, the physician must terminate the pregnancy in a manner that provides the unborn child the greatest likelihood of survival, unless that method imposes increased risk to the pregnant person. In other words, even in cases where the fetus is not even close to viability, a provider could be forced to induce labor or perform a c-section rather than provide a termination. 

• As a reminder, immediately after Dobbs, Wisconsin Republicans began arguing for enforcement of a total abortion ban from 1849. A state judge ruled last year that the 1849 law only applies to feticide and does not apply to consensual abortions, giving abortion providers in the state the legal protection necessary to begin resuming services for the first time in over a year. Additionally, last year Wisconsinites elected Justice Janet Protasiewicz to the State’s high court–Justice Protasiewicz made her support for abortion rights clear on the campaign trail. Justice Protasiewicz’s addition to the court gave liberals a 4-3 majority at a time when abortion-related litigation is making its way to the Justices’ desks. 

• Abortion Trafficking in Oklahoma and Tennessee: 

• Oklahoma and Tennessee have joined Idaho in introducing abortion trafficking laws aimed at prohibiting the transport of minors to another state in order to obtain an abortion. We have discussed these kinds of bans a great deal in this Digest, but they are a hallmark of post-Dobbs anti-abortion legislation and litigation. With the fall of Roe, state legislators are empowered to pass increasingly draconian legislation regulating access to reproductive healthcare, and litigation over abortion rights has shifted to the previously uncharted territory of interstate travel. 

• Although Tennessee and Oklahoma both currently ban abortion at all gestational ages, legislators in the states are seeking to enforce those restrictions across state lines. Oklahoma’s proposed law would criminalize aiding a minor in obtaining an abortion in another state, regardless of whether abortion is legal in that state or whether the minor consents to the travel and the procedure. The bill, which carries a potential prison sentence of 2-5 years, is written in broad language intended to intimidate anyone who would otherwise assist a minor in accessing abortion care. Tennessee’s proposed law would similarly bar anyone other than a minor’s parent or legal guardian from helping them cross state lines for an abortion. In Tennessee, those found in violation could face up to 15 years in prison. So-called abortion trafficking laws don’t just impact trusted adults who might help a minor family member or friend–they also take aim at abortion funds. These funds are an absolutely critical resource in ban states, as individuals are forced to travel long distances, often requiring time off work and away from their families, in order to safely obtain reproductive health care. 

• Although the enforceability of these laws remains an open question, the goal is that the threat of enforcement alone is sufficient to stop would-be helpers from stepping in. Americans have a constitutional right to travel between states– ‘abortion trafficking’ bills infringe on that right and invent a criminalization mechanism for otherwise legal conduct. Idaho’s identical law is temporarily halted by a state court that found that the state is not free to simply invent the crime of abortion trafficking; the final outcome of that case has not yet been handed down. Its outcome will be a bellwether for how these laws may fare in other states seeking to pen their citizens in and deprive them of their right to travel to access legal care. 
  

• North Dakota: 

• In North Dakota, a judge declined to block enforcement of the State’s abortion ban for emergency cases, as determined by the provider’s good faith medical judgment. At present, North Dakota is enforcing a total abortion ban with extremely narrow exceptions to preserve the life of the pregnant person or to prevent a serious health risk. As with many state abortion restrictions, the law is written in broad non-medical terms that leave providers with little to no clarity about the parameters of permissible care. 

• In the present case, the plaintiffs argue that the ban’s exceptions are too narrow to comply with the State Constitution, and that the law does not provide doctors with a discernible standard for when they can safely intervene without incurring legal risk. The North Dakota Supreme Court previously blocked another total abortion ban–the State’s trigger ban–finding that its failure to include exceptions for the life or health of the pregnant person was unconstitutional. The question now is how far do the State’s constitutional protections extend to protect pregnant people. 

• The failure of abortion-restrictive states to provide clear or workable exceptions to their bans has led to widespread confusion across the country and deterred physicians from providing best-practice care. Litigation over the scope of States’ obligations to preserve the life or health of the pregnant person has been one way that advocates have sought to provide clarity. The North Dakota case is progressing at the same time as the U.S. Supreme Court is set to take up the question of whether the Emergency Medical Treatment and Labor Act (EMTALA) requires providers to perform abortions in emergency situations regardless of state bans. Although the stakes and the legal arguments in the cases are distinct–one centers on North Dakota’s Constitution, and the other on the parameters of a federal law – both lawsuits are responsive to the healthcare disaster created by unclear and unsafe abortion laws.  

What else is happening in access? 

• Abortion politics will be front and center during the 2024 election cycle. Experts are weighing in on how an anti-abortion executive branch could use its enforcement powers to decimate abortion rights, without the need for congressional approval or an outright abortion ban. President Biden and Vice President Harris have announced new plans to increase protections for reproductive rights, including abortion and contraception. Meanwhile, it seems that anti-choice Republicans are responding to the political backlash to Dobbs by deleting references to their position on abortion from their websites. 

• Idaho has one of the most severe abortion bans in the country–notable for its lack of exceptions for the health of the pregnant person or in cases of fetal anomaly. Now, an Idaho lawmaker has introduced a bill to also remove the rape or incest exception. If passed, this would render abortion only available to save the pregnant person’s life. 

• A new study reports that approximately 65,000 rape-related pregnancies have occurred across the 14 states with abortion bans in place. Even in states that have exceptions for rape or incest, the law often requires the victims to report the crime to law enforcement. And in practice, providers are wary of providing the care for fear of legal liability. 

• Washington state is preparing pharmacists to prescribe medication abortion, in a bid to improve access and alleviate the immense burden faced by abortion clinics in states where it remains legal. 

• Democrats in Kentucky unveiled a bill seeking to roll back Kentucky’s abortion ban; however, with the current Republican majority in the state legislature, passage is extremely unlikely. Proponents of the bill hope to galvanize activists in the state to continue to push for change. 

• The Iowa legislature has advanced a bill to ease requirements for state funding of ‘pregnancy resource centers.’ These centers have long been criticized for misleading tactics aimed at dissuading pregnant people from seeking an abortion rather than supporting those who wish to remain pregnant. In anti-abortion states, funding of these centers is a common strategy for lawmakers who wish to appear supportive of pregnant people while still legislating against reproductive rights 

• A group of transgender veterans have filed a lawsuit asking the Department of Veteran Affairs to include gender-affirming surgery in its medical health benefits for vets. Notably, the Department currently covers most non-surgical aspects of gender-affirming health care. 

• Four LGBTQ+ advocacy organizations have petitioned the U.N. over Texas laws that target the LGBTQ+ community. 

• The Ohio legislature overrode Governor DeWine’s veto of the state’s gender-affirming care ban, throwing the future of transgender adults and minors in the state into uncertainty. 

• Kate Cox, the Texas woman who was forced to flee the state to obtain an abortion after a devastating fetal diagnosis, has been invited to the State of the Union. 

• The Nebraska legislature has not reintroduced the 6-week abortion ban that it attempted to pass in the prior legislative session. 

• Abortion rights advocate Jessica Valenti wrote a critical piece about how state-sanctioned and misleading anti-abortion rhetoric is making its way into schools. 

• An Oklahoma lawmaker introduced a resolution that would enshrine in the state constitution that all rights associated with personhood begin at conception. Fetal personhood bills have popped up all over the country and could affect the availability of fertility treatments, the family law system, the criminalization of pregnancy, various tax provisions,  and of course–abortion and other aspects of reproductive health. 

• A recent investigation has revealed that all 8 of the major pharmacy chains in the U.S. have turned over prescription records to law enforcement without a warrant, as the stores do not require employees to run records requests past their legal departments prior to complying. This poses a serious risk to patient privacy at a time when the threat of investigation or criminalization for those seeking care is all too real.
  

Issue of the Week: Ballot Initiative Updates 

Ballot measures seeking to enshrine or remove protections for reproductive healthcare are underway across the country. While it is impossible to report on all of the movement while still keeping this Digest reasonably concise, we have covered some of the major highlights below, and we will continue to keep you updated as things progress. 

• Arkansas:

• Arkansas’ Attorney General has approved language for a proposed ballot measure that would prohibit the state from restricting abortion prior to 20 weeks LMP, with exceptions for lethal fetal anomaly, rape or incest, and the life or health of the pregnant person. Proponents of the measure can now begin collecting signatures ahead of the 2024 election. A win for abortion rights in a solidly red state like Arkansas would be a huge win for the reproductive rights movement in the South. 

• Nevada: 

• A Nevada judge issued a ruling approving a proposed ballot initiative that would add protections for abortion rights until 24 weeks gestational age to the State Constitution. The measure can move forward to the signature gathering stage. Although abortion is already legal through 24 weeks by statute in the state, enshrining it into the constitution would cement those protections and remove them from the whims of changing legislatures. 

• Florida: 

• The Florida Department of State has verified that a ballot measure seeking to protect “pre-viability” abortion rights has received enough valid signatures to be put on the ballot this fall. However, the State’s highly conservative Supreme Court must also weigh in on the propriety of the proposed amendment’s language. The Court will hear oral arguments next month. Meanwhile, taking a cue out of Ohio’s book, Florida Republicans are trying to raise the threshold to pass a constitutional amendment from 60% to nearly 67%. 

The State’s Supreme Court is also currently considering the constitutionality of a 15-week ban passed in 2022; the outcome of this case will determine whether Governor DeSantis’s six-week ban will pass into law. Floridians' efforts to protect abortion rights take on particular importance as state lawmakers continue to advance restrictions on abortion including introducing a new total abortion ban and attempting to pass fetal personhood laws. 

• Montana: 

• In bad, but not unexpected, news out of Montana, the State’s Attorney General has struck down a proposed ballot initiative protecting abortion rights as legally insufficient. Montanans Securing Reproductive Rights has petitioned the State Supreme Court to allow the ballot measure to advance towards the November ballot, arguing that the Attorney General’s comments exceeded his authority. The measure would prohibit the state from restricting abortion “pre-viability.” 

• Missouri:

• In Missouri, efforts to get abortion before the voters have hit yet another roadblock. Anti-abortion groups have introduced a plan that would require a ballot initiative to win a majority in 5 of the State’s 8 congressional districts, rather than a simple statewide majority. With the State’s districts gerrymandered to favor Republicans, passage of this proposal could erect a significant barrier to any abortion ballot measure. Attempts to keep abortion off of the ballot by subverting direct democracy are not new, but they are alarming and will impact trust in the democratic process far beyond the issue of abortion alone. 

• Mississippi: 

• In Mississippi, House Republicans have approved a resolution that would revive the State’s ballot initiative process with an express exclusion prohibiting citizens from bringing proposals relating to abortion. In other words, if the resolution passes it would deprive Mississippians of their ability to utilize direct democracy to protect abortion, while allowing all other issues to be raised. Critics have lambasted the move as substituting the judgment of state legislators over the voices of state residents. Certain proponents of the resolution have expressed the somewhat baffling opinion that voters should not be allowed to express their will on abortion because Mississippi is the state that initiated the case that overturned Roe. 

REPRODUCTIVE HEALTH DIGEST (1/19/24)

Developments in Abortion, Autonomy, and Access: 

Welcome back and Happy New Year! We thank you for your patience while we were closed over the holidays. The break gave us all at L4GG a much-needed chance to rest and restore before hitting the ground running in 2024. As you know all too well if you read this newsletter, 2023 was a critical and devastating year for bodily autonomy. As this new year begins, we are keeping a close eye on bills coming out of state legislative sessions, ballot initiatives that will go before voters this year, ongoing litigation, and–of course–the reproductive rights politics surrounding the 2024 presidential election. We are starting this year ready and energized to fight back against anti-choice attacks and misinformation and to support the right for everyone to be safe and free in their body. 

To stay up to date on reproductive health policy during this crucial year, please consider registering for our Policy Resource Hub for Reproductive Health, available at L4GG.org/Repro. The Hub contains our state abortion law research database, which is updated daily and explains the state of abortion law in every single U.S. state and territory. The Hub also includes our constantly growing media bank of thousands of searchable reproductive health-related articles, and the archive of every issue of the Repro Health Digest. We look forward to seeing you there!

Legal Changes at the State Level: 

• Brief Overview: 
  

  • EMTALA in Idaho and Texas:  Federal courts out of Idaho and Texas have come to differing conclusions about whether the Emergency Medical Treatment and Labor Act’s stabilizing care requirement preempts state abortion bans. The U.S. Supreme Court will consider the Idaho-based challenge in April. 

  • Kentucky: In our last digest, we reported on a lawsuit brought directly by a Kentucky woman challenging the State’s abortion ban. However, in late December, lawyers for the plaintiff voluntarily dropped the lawsuit after the fetus lost cardiac activity. Lawyers for the ACLU and Planned Parenthood are now seeking other potential plaintiffs to challenge the State’s ban. Historically, cases challenging abortion restrictions were brought by providers and clinics rather than the patients themselves; however, post-Dobbs, state courts, and anti-abortion activists have argued that these parties do not have standing to challenge the laws. Cases brought directly by pregnant people avoid this potential roadblock. 

  • Ohio Update:  As we have reported on extensively in this Digest, last year Ohio passed Issue 1, enshrining “pre-viability” abortion rights into the State’s Constitution. Although Issue 1 officially took effect on December 7th of last year, contradictory laws remain on the books, including the state’s fetal heartbeat ban. However, late last year, the State’s Supreme Court dismissed the State’s attempt to enforce the near-total ban, citing a change in the law. The case now goes back down to a lower court for further litigation. 

  • North Carolina: In North Carolina, advocates presented arguments challenging the state’s restrictions on the use and distribution of mifepristone, which exceed the FDA’s more permissive regulations of the drug. 

  • Alliance for Hippocratic Medicine v. FDA Update: Judge Matthew Kascmaryk has granted Kansas, Idaho, and Missouri’s motions to intervene in the case challenging the FDA’s approval of mifepristone. Their inclusion threatens to complicate the argument that the current plaintiffs lack standing. 

  • Idaho: The injunction blocking enforcement of Idaho’s abortion trafficking law has been upheld for the time being. In an earlier decision enjoining the law, Judge Debora K. Grasham articulated that “abortion trafficking is not a thing,” because the procedure remains legal in other states. She further explained that while Idaho is free to criminalize abortion and human trafficking, it cannot “craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights.” Arguments surrounding interstate travel for abortion are a unique feature of the post-Dobbs legal landscape, and we will be closely tracking their development as they wind their way through the courts this year.

  • Ohio and Brittany Watts: Ohio woman Brittany Watts will not be indicted on charges related to her miscarriage. Although this is the obvious correct outcome of her case, the fact that the case was brought at all sounds alarm bells about increased surveillance and the criminalization of pregnancy outcomes. 
    

• Legal Analysis: 

• Idaho, Texas, and EMTALA: 

• Litigation about states’ obligations to provide stabilizing abortions when necessary under the federal Emergency Medical Treatment and Labor Act (EMTALA) will reach the U.S. Supreme Court. 

• After the 2022 Dobbs decision overturned Roe v. Wade, states including Texas and Idaho swiftly enacted total or near-total abortion bans, with extremely narrow exceptions to save the life or health of the pregnant person. In response, the Biden Administration issued guidance explaining that EMTALA’s requirement that hospitals receiving medicare funds provide stabilizing care to any emergency patient preempts state abortion bans. In other words, if the treating providers determine that an abortion is what is needed to stabilize a patient, EMTALA requires them to provide that care even in ban states. Both Idaho and Texas challenged this guidance. 

• In Idaho, a lower court issued an injunction against the state’s abortion ban, insulating emergency room providers from legal risk in cases where they perform an abortion to save a patient’s life. However, in early January, the Supreme Court issued a ruling rolling back that injunction and allowing the law to take full effect while litigation plays out. The Justices indicated that they will hear oral arguments on the matter in April of this year. 

• In a nearly identical case out of Texas, the Fifth Circuit Court of Appeals sided with the State, finding that EMTALA cannot be enforced over state abortion bans, even in emergency cases. Rabia Muqaddam, an attorney with the Center for Reproductive Rights, explained that the Fifth Circuit’s interpretation was a “radical narrowing” of the law and essentially means that everyone in an emergency room is entitled to stabilizing care “unless they happen to be a pregnant person who needs an emergency abortion to be stabilized.” Under norms of statutory construction, a federal statute almost always takes precedence over a conflicting state statute; however, the courts appear willing to turn established precedent on its head if it means removing protections for pregnant people. Although the Fifth Circuit’s ruling largely narrows EMTALA’s scope, it seems to expand the law in one striking way–the Court’s Opinion takes the position that EMTALA’s requirements apply with equal strength to both the pregnant person and the fetus, stating that “EMTALA imposes obligations on physicians with respect to both the pregnant woman and her unborn child . . . [t]his is a dual requirement.” This suggested expansion of EMTALA obligations jeopardizes emergency medical care for pregnant people and places providers in an even more untenable position. 

• It is important to note that, for now, EMTALA protections remain in place in all other states, as the courts’ rulings are currently limited to Idaho and Texas. However, with the Supreme Court set to consider Idaho’s appeal in April, that could change before the year is up.

• North Carolina:

• Advocates in North Carolina presented arguments this week in a lawsuit challenging the State’s restrictions on medication abortion. These restrictions exceed the FDA’s own regulations on the drug and have drawn criticism for going beyond what is medically necessary to ensure safety. ​​FDA regulations currently allow mifepristone to be prescribed up to 70 days (10 weeks) of pregnancy, and permit it to be distributed via telehealth without a mandatory waiting period. In contrast, North Carolina requires patients to first have a consultation and then wait 72 hours prior to having the drug administered in person in specified facilities. In some cases, the State also mandates an ultrasound prior to prescribing the medication. 

• The plaintiffs in the case argue that these requirements create medically unnecessary burdens to care and conflict with clear FDA guidance, which specifically considered and rejected the idea that mifepristone must be distributed in person. The Defendants argued in response that the FDA’s regulations are a ‘floor’ and that states are free to build off on them with their own additional restrictions. This North Carolina case occurs against the backdrop of a looming Supreme Court determination about the propriety of the FDA’s approval of mifepristone, as well as ongoing arguments about how to reconcile state and federal law with respect to abortion. Depending on how the Supreme Court rules in these cases, we could see a significant shift in the legal landscape surrounding the regulation of medicine.
  

• Alliance for Hippocratic Medicine v. FDA: 

  • Judge Matthew Kascmaryk, the Trump-appointed Texas judge who drew criticism for his anti-abortion rulings in Alliance for Hippocratic Medicine v. FDA has granted 3 states’ motions to intervene in the lawsuit. Republican-led Idaho, Missouri, and Kansas successfully argued that they are appropriate parties to the case because their states’ interests are purportedly affected by the FDA’s approval of mifepristone. Their addition complicates a key argument in the ongoing litigation: that the provider and provider groups who brought the lawsuit do not have standing to challenge the FDA’s regulations. With the intervention of these states, even if the Supreme Court agrees that the original plaintiffs lack standing, the states could attempt to keep the case alive based on their own independent allegations. 

  • Medication abortion accounts for more than half of all abortions in the U.S., and with many states severely limiting or outright banning abortion, telemedicine has become increasingly critical post-Dobbs. Clinics, advocates, and individuals are all bracing for a Supreme Court ruling limiting access to medication abortion, and exploring options for how to mitigate the harm that will inevitably follow. Providers are preparing to switch to a misoprostol-only regimen, in lieu of the current two-medication process. And advance orders of mifepristone are likely to surge in the coming months, as they have previously when access in a particular state or region has been imminently threatened.
    

• Ohio and Brittany Watts:

  • Although we typically use this section of the Digest to analyze changes to state law, Brittany Watts’ story deserves to be told, and its implications for reproductive justice and pregnancy criminalization are critical to discuss and understand. Brittany Watts is a 34-year-old Ohio woman who faced felony criminal charges for her handling of a miscarriage that occurred in the bathroom of her own home. Last week, a grand jury declined to indict Ms. Watts, and while that is absolutely the correct result, the reality is that this should have never happened in the first place. 

  • Last September, Ms. Watts, who was nearly 22 weeks pregnant at the time, was admitted to the hospital for vaginal bleeding. Her doctors determined that her water had broken prematurely and that her pregnancy was unfortunately no longer viable. Ultimately, Ms. Watts miscarried at home in her bathroom. She then went to the hospital where she had a D&C procedure to remove the remaining placental tissue. During this hospital visit, a nurse called the local police department. 

  • Police responding to that call went to Ms. Watts’ home and retrieved the fetal remains from the toilet. An autopsy confirmed what Ms. Watts and her doctors already knew: that the fetus had died in utero following a premature rupture of the membranes. Regardless, in October, Ms. Watts was charged with the felony of “abuse of a corpse.” In supporting the charges, prosecutors argued that the issue wasn’t “how the child died, when the child died” but “the fact that the baby was put into a toilet, was large enough to clog up the toilet, left in the toilet, and she went on [with] her day.” This argument demonstrates a stunning lack of understanding and empathy about the heartbreakingly common experience of miscarriage. And the charge itself raises important legal questions about fetal personhood. Generally, common law does not consider a fetus a human being for purposes of abuse of a corpse until after birth. Expanding the scope of that law to circumstances of miscarriage would create a near-limitless increase in the potential for the criminalization of pregnancy outcomes.

  • The grand jury’s determination that Ms. Watts should not be indicted is the obvious and just conclusion. But, the fact that these charges were brought at all is chilling. Pregnant people miscarry alone in their homes every day. They should not have to fear that their miscarriage might lead to accusations of criminal conduct or that a visit to their doctor for post-miscarriage care could lead to a call to law enforcement. The criminalization of pregnancy outcomes is very real and all too common. As Ms. Watts’ home state amends its constitution to protect access to abortion, stories like hers are a reminder that the fight for reproductive justice affects all aspects of reproductive care and equity–and that it is far from over.
    

More News in Access: 

• As we consider how to vote in 2024, please take a moment to read this piece from Rolling Stone about the official Republican plan to restrict access to abortion, and contraception and to increase surveillance of pregnant people and pregnancy outcomes.

• A Virginia legislator has introduced a bill that, if passed, would ban abortion entirely with a narrow exception to save the life of the pregnant person. Thanks to last year’s elections, democrats control both houses of the state legislature, so the bill is unlikely to pass into law. 

• A coalition of Missouri abortion rights groups has finalized language for a proposed ballot measure to protect reproductive rights in the state. The measure would protect the right to abortion up until “fetal viability,” with exceptions for the life or health of the pregnant person throughout pregnancy. 

• Amarillo may be the next Texas city to ban so-called “abortion trafficking,” following the lead of several other cities and localities. This tactic of restricting travel is one of the latest anti-choice strategies aimed at stopping pregnant people from traveling out of ban states to access care. 

• In Indiana, a new report shows that only 17 pregnant people have been able to obtain an abortion in the state since its total abortion ban went into effect last August. This number clearly demonstrates a fact that we talk about a great deal in this newsletter: abortion exceptions do not actually increase access to care. 

• The 11th Circuit Court of Appeals allowed Alabama’s ban on gender-affirming care to take effect during the pendency of litigation. 

• A Seattle lawsuit alleges that the Texas Attorney General requested medical records for minors from Texas who received gender-affirming care. 

• In the first post-Dobbs presidential election year, how reproductive rights affect voters' choices in the ballot box is top of mind, and research shows that many Republicans support access to abortion even while they support anti-choice candidates.  

• The U.S. Supreme Court has declined to hear a case about whether a school district can force trans students to use the restroom that corresponds with their sex assigned at birth. 

• Arizona abortion advocates are facing pushback on their proposed ballot initiative from a campaign called “It Goes Too Far.”  

• Ohio Governor Mike DeWine vetoed the state legislature’s passage of a gender-affirming care ban for minors. However, shortly after the veto, he signed an Executive Order heavily restricting access to certain types of gender-affirming care. And, the Ohio House has now voted to override the Governor’s veto altogether. At this time, advocates are calling for the state legislature to uphold the veto. 

• In Kentucky, a bill has been proposed that would allow pregnant people to collect child support during pregnancy. Although at first glance this may seem like a move to support parents, laws that define a fetus as having the same rights as a born child are a dangerous tactic employed by anti-choice activists wishing to slowly change the legal landscape. We will be watching for these kinds of bills as states return to their legislative sessions this year. 

• Florida advocates have officially collected enough signatures for their ballot initiative to go before voters. 

• The Iowa Board of Medicine is considering changes to proposed rules about how to implement the state’s abortion restrictions. We previously reported on how the original draft of the proposed rules would undermine the practice of medicine and the doctor-patient relationship. 

• This piece from the New Yorker takes a look at how one young woman may have lost her life as a result of Texas’s restrictive abortion laws and the chilling effect that they have on healthcare providers. We must remember her story as we continue the fight for everyone’s right to autonomy over their own body. 

REPRODUCTIVE HEALTH DIGEST (12/15/2023)

Developments in Abortion, Autonomy, and Access: 

A great deal has happened in reproductive health law in the past two weeks. Several state supreme courts heard abortion-related oral arguments, the Texas Supreme Court overturned a lower court's ruling that permitted a pregnant woman facing a lethal fetal diagnosis and severe complications to obtain an abortion, and new abortion rights lawsuits have been filed. At the federal level, the U.S. Supreme Court has agreed to hear the case brought by the Alliance for Hippocratic Medicine challenging regulations on mifepristone for medication abortion. Please read on for more details.

Legal Changes at the State Level: 

• Brief Overview: 

• Texas: Just days after the Texas Supreme Court heard oral arguments about the scope of the state’s abortion ban, a Dallas woman brought a lawsuit requesting an emergency order allowing her to obtain an abortion in light of a grave fetal diagnosis and increased risk to her own health and future fertility. Although her request was briefly granted, the State appealed, and the Texas Supreme Court ultimately denied her request.

• Ohio: Issue 1 went into effect on December 7th, adding constitutional protections for pre-viability abortion in the state. However, other contradictory laws have not been repealed, and at this time providers have indicated that they will continue to operate under the pre-Issue 1 law until those laws are removed from the books or a court issues an order finding them unconstitutional.

• Kentucky: Planned Parenthood and the ACLU filed a new lawsuit on behalf of a pregnant Kentucky woman seeking an abortion. The lawsuit directly challenges the State’s abortion ban. After filing the lawsuit, the original plaintiff learned that her embryo no longer had detectable cardiac activity; however, the lawsuit will continue, and the attorneys are asking other potential plaintiffs to come forward and join the challenge.

• Developments in Ongoing Litigation: A number of important abortion-related arguments have been heard in state courts across the country in the past two weeks, including in New Mexico, Wyoming, Arizona, and Indiana.

  • New Mexico: On Wednesday, December 12th, the New Mexico Supreme Court heard oral arguments about whether cities and counties can pass local abortion bans, despite abortion being legal in the State. Proponents of the local abortion bans rely on the Comstock Act, a long-dormant 1873 law that bans the mailing of materials used for abortions. During the arguments, the Justices did not indicate which way they will rule, but they did at times appear extremely skeptical of the argument that cities can limit abortion in direct defiance of established state law.

  • Wyoming: The Wyoming Supreme Court is weighing whether pro-life activists and lawmakers can join the ongoing lawsuit about whether abortion is protected health care under the State’s Constitution. 

  • Arizona: In Arizona, the State Supreme Court heard oral arguments on Tuesday about whether an 1864 total abortion ban can be enforced post-Dobbs. Currently, abortion is legal until 15 weeks in the state. The panel of judges appeared mixed; however, several of the judges seemed persuaded by the argument that the current legislature never intended to ban abortion outright in the state.

  • Indiana: An Indiana Court of Appeals heard oral arguments about whether the State’s total abortion ban violates the Indiana Religious Freedom Restoration Act (RFRA). The suit was brought on behalf of Indiana Jews for Choice and other individuals whose belief systems permit abortion outside of what state law allows. Using religious freedom to fight for abortion rights is a unique strategy that we saw employed shortly after Dobbs. Although the pro-life movement often falsely claims religion as its own, the reality is that many religions have diverse and permissive views about abortion and the spiritual conceptualization of when life begins. 

• Mifepristone Update: The U.S. Supreme Court has agreed to hear the case challenging regulations on the abortion drug mifepristone. Access to the drug remains unchanged for the time being. 

Legal Analysis: 

• Texas: 

• Texas has been front and center in abortion news in the past few weeks, as the State argues over how to properly interpret exceptions to its total abortion ban. Mere days after the Texas Supreme Court heard oral arguments about the scope of the State’s ban in Zurawski v. Texas, 31-year-old Dallas woman Kate Cox brought a separate lawsuit requesting an emergency order allowing her to obtain an abortion. Ms. Cox petitioned for relief after learning that her fetus had Trisomy 18 and was unlikely to survive the pregnancy or live longer than a few moments outside of the womb. The complication with her pregnancy also significantly increased the risk to Ms. Cox’s own health and fertility, as alleged in the Complaint. Texas’s total abortion ban does not include an exception for cases of fatal fetal anomalies; instead, it only permits abortion to save the pregnant person’s life or prevent substantial impairment of a major bodily function. 

• Initially, Ms. Cox’s request was granted by district court judge Maya Guerra Gamble, who issued a temporary restraining order protecting Ms. Cox, her husband, and her provider. However, Texas Attorney General Ken Paxton filed a Petition to stay the order. AG Paxton also sent a letter to several Texas Hospitals threatening prosecution for assisting in providing the procedure, despite the lower court order allowing it. The State Supreme Court granted Paxton’s request for a stay and ultimately denied Ms. Cox’s request for an order permitting an abortion. In its unanimous Order, the Court found that a “good faith belief” by Mrs. Cox’s doctor that the procedure was medically necessary was insufficient to invoke the exception to the State’s ban. The Court offered little guidance on when the exception would apply, but did state that “[s]ome difficulties in pregnancy…even serious ones, do not pose the heightened risks to the mother the exception encompasses.” The Court came to this conclusion despite Ms. Cox’s physician’s determination that her patient’s life, health and future fertility were all placed in jeopardy by continuing the pregnancy. While awaiting the ruling from the State Supreme Court, Ms. Cox was forced to leave the state to obtain the care she needed without further delay. 

• As noted above, Ms. Cox’s legal battle unfolded within weeks of the State’s arguments in Zurawski v. Texas, the case challenging the scope of the State’s exception to its abortion ban. During the Zurawski hearing, the attorney for the State seemed to argue that in order to have standing to challenge the State’s abortion ban, a pregnant person in the midst of a health crisis could petition the court for emergency relief. That is exactly what Ms. Cox did, and instead of showing that the State’s abortion ban is workable, as Texas has steadfastly insisted, it made apparent that judicial involvement in medical decision-making harms patient care. By placing its own judgment over that of Ms. Cox’s doctor and the families’ own wishes, the State would have Ms. Cox continue to carry a doomed pregnancy and face potentially severe harm to her own health and her ability to have more children in the future. The cruelty cannot be overstated. 

• Ohio:

• As we have reported on extensively, Ohioans passed Issue 1 in November, enshrining “pre-viability” abortion rights in the State’s Constitution. Issue 1 officially took effect on December 7th. However, other contradictory laws, including the State’s attempt to ban abortion after detection of a fetal ‘heartbeat’, and the currently enforced 20-week abortion ban, have not been repealed. Although it seems that Ohio Republicans have backed off of some of their initial suggestions on how to block Issue 1’s effectiveness, including stripping the judiciary of jurisdiction to hear cases related to it, the fight is far from over.

• Democratic leaders have introduced legislation to try and repeal contradictory and access-limiting legislation, including the fetal heartbeat ban. But, with a Republican-controlled legislature, it is more likely that advocates will have to go through the protracted process of having the courts evaluate each of the remaining laws and determine whether they are now void under Issue 1. At this time, despite the passage of Issue 1, providers have indicated that they will continue to operate under pre-Issue 1 law until the legislature repeals existing bans, or a court issues an order finding them unconstitutional. This means that for now access in Ohio remains functionally unchanged.
  

• Kentucky: 

• In Kentucky, Planned Parenthood and the ACLU have filed a new lawsuit on behalf of a pregnant Kentucky woman seeking an abortion. The plaintiff is directly challenging the State’s total abortion ban and fetal heartbeat ban. After filing the lawsuit, the initial plaintiff learned that her embryo no longer had detectable cardiac activity, meaning that the State will likely argue that the case is moot and should be dismissed. However, the ACLU has indicated that they do not plan to drop the suit. Brigitte Amiri, deputy director of the ACLU’s reproductive freedom project highlighted the importance of patient-led lawsuits, and has called on other Kentuckians who need an abortion to come forward and join the suit. 

• Suits led directly by pregnant people have been a growing trend in the past few months, with notable litigation coming out of Texas. These suits have the advantage of avoiding the standing questions that arise when the provider brings the case, rather than the patient themselves. In fact, Kentucky abortion clinics attempted to sue over the State’s ban last year, but the State Supreme Court ruled that they did not have standing to bring the claim on behalf of their patients. The present lawsuit will avoid that particular challenge. Instead, the initial plaintiff and any others who may join, argue directly that Kentucky’s trigger ban and six-week ban are unconstitutional under the State’s guarantee of liberty, which they persuasively allege encompasses rights to privacy and self-determination. Unlike the suit out of Texas, which brings a limited challenge to clarify the scope of the life and health exception to the State’s abortion ban, the Kentucky suit challenges the abortion bans in their entirety. This will be an important one to watch as litigation over post-Dobbs bans ramp up into the new year. 

• Mifepristone Update:

  • On Wednesday, December 13, the Supreme Court agreed to hear the case challenging the FDA’s approval of mifepristone for use in medication abortions. Notably, the Court will not take on the question of the FDA’s original 2000 approval of the drug. Instead, it will consider whether the FDA acted improperly when it eased restrictions on the drug’s use, including permitting it to be prescribed via mail. It will also consider questions about whether the plaintiffs, a group of anti-choice providers and provider groups, have standing to bring the challenge when they themselves do not prescribe abortion medication to their patients. The High Court agreed to hear this case a year and a half after it purported to wash its hands of abortion questions and return them to each individual state. 

  • As a quick refresher, the plaintiffs strategically brought this case in the Northern District of Texas, in front of Trump-appointee Judge Matthew Kacsmaryk. Initially, they sought to not only restrict the use of mifepristone, but to have its FDA approval revoked altogether. Although Judge Kacsmaryk initially issued an order in their favor, the Fifth Circuit Court of Appeals later partially reversed that order, finding that the challenge to the 2000 approval was outside of the statute of limitations. While the appeal played out in the lower courts, the Supreme Court issued an Order staying the lower courts’ decisions until it had a chance to weigh in, preserving access to the drug for the time being. 

  • Following briefing and oral arguments, the Court will likely issue a ruling in the case by summer 2024. There is no way to know exactly how the Court will rule, but there is reason to be skeptical that the Court that overturned Roe will issue a favorable ruling. If the Court reinstates old restrictions on mifepristone–specifically, the requirement that it be dispensed in person-it will have devastating effects on the ability of patients in ban states to access care. This Digest will continue to post updates as briefing and oral arguments occur. 

More News in Access: 

• For information on ways in which anti-choice lawmakers and advocates have moved to restrict access to contraception, please read here. 

• A “brain drain” is occurring in conservative states that are waging a ‘culture war’ against free speech, diversity, and the right to healthcare. In increasing numbers, college-educated workers, including educators and physicians, are beginning to set their sights on more progressive states to call home. 

• Ohio finally removed the spousal exception for charges of rape. Representative Bill Dean was the singular “no” vote on the measure. He later told a reporter from USA Today that “I personally don’t believe that a man, if he’s married and has physical relations with his wife, that can be considered rape.” 

• Republicans in New Hampshire have proposed a 15-day abortion ban, which would effectively ban abortion from the time of fertilization. Although it is not likely to become law, it is an important reflection of anti-choice intent and the basic lack of understanding about how and when pregnancy detection is possible that undergirds so much anti-choice legislation. 

• For an update on Florida’s attempt at a ballot initiative, please read here. Although advocates are making significant progress, they face weighty challenges with the extremely conservative state supreme court. 

• Ohio legislators have passed a ban on gender-affirming care for minors and a sports ban; the bills will now go to the governor for signature or veto. 

• Business Insider investigated the predatory tactics of one group ‘Let Them Live,’ that purports to offer pregnant people money and support in exchange for agreeing to not have an abortion. However, the group has failed to fulfill its promises on numerous occasions, leaving women without the promised support and past the point in pregnancy where termination is an option. 

• 23 independent abortion clinics have closed in 2023, on top of the 42 that closed in 2022, leaving many states with no physical facility to obtain the procedure.  

• Wisconsin Governor Tony Evers voted to veto the State’s proposed ban on gender-affirming health care for minors. 

• An MD has provided important information and talking points on how to combat the most common anti-trans rhetoric and disinformation. 

• In Montana, advocates have launched an effort to protect abortion rights in the State’s Constitution. 

• In Missouri, lawmakers have begun pre-filing bills for the next legislative session, including one that would make it more difficult for constitutional amendments to pass in the State. This comes as advocates attempt to get a reproductive rights ballot initiative in front of Missouri voters. 

• A Wisconsin Judge affirmed her previous determination that an 1849 law criminalizing abortion in the state does not apply to ‘consensual’ abortions and does not impact care in the state. You can find that ruling here. 

• Interstate travel for abortion care has doubled since 2020, highlighting the difficulties that pregnant people are facing in accessing care and the continued need for accessible telemedicine.  

• In South Dakota, indigenous supporters of the rights of transgender and two-spirit people reflect on the significance of a failed anti-trans bill in the state.

REPRODUCTIVE HEALTH DIGEST (12/1/2023)

Developments in Abortion, Autonomy, and Access: 

This week’s Digest discusses ongoing litigation in Texas, Ohio, and Idaho, as well as new legislation out of Michigan. We also take a look at what is going on around the country in both abortion care and other bodily autonomy issues and do a deep dive into medically problematic proposed abortion regulations out of Iowa.

Legal Changes at the State Level: 

• Brief Overview: 

• Texas: On Tuesday, November 28, the Texas Supreme Court heard arguments about the scope of the State’s exceptions to its total abortion ban in a case brought by Texas patients who were denied abortions while facing severe pregnancy complications.

• Ohio: The Ohio Supreme Court has asked the parties to an ongoing lawsuit over the State’s fetal heartbeat ban to weigh in on how the passage of the new Reproductive Freedom Amendment impacts the constitutionality of that ban. This briefing will occur against a backdrop of Republican pushback to the passage of the Amendment and Democrat-led attempts to clear the way for its implementation.

• Idaho: Idaho has asked the U.S. Supreme Court to step in and allow the state to fully enforce its near-total abortion ban, which allows for the prosecution of medical providers in certain circumstances.

• Michigan: Michigan Governor Gretchen Whitmer signed a watered-down version of the Reproductive Health Act. The Act repeals outdated and medically unnecessary abortion restrictions in the state, including the requirement for providers to screen pregnant people for signs of being coerced into having an abortion and arbitrary building code requirements for facilities where abortions are performed. Governor Whitmer initially attempted to pass a more comprehensive bill that would have also rescinded a 24-hour waiting period for abortion seekers and allowed state Medicaid funding for abortions; however, Democrat Representative Karen Whitsett refused to vote in favor of those amendments.

Legal Analysis: 

• Texas: 

• This past Tuesday, the all-Republican Texas Supreme Court heard arguments about the proper scope of the life and health exceptions to the State’s otherwise total abortion ban. The suit, Zurawski v. Texas, was the first to be brought directly by pregnant people who were denied abortions in emergency situations. Since the suit’s inception, the number of plaintiffs has more than tripled, to twenty women and two doctors. Each of the patient plaintiffs in the case faced severe pregnancy complications, including diagnoses of lethal fetal abnormalities. Some of them had to travel outside of Texas in the midst of a health crisis to receive care,  others were forced to carry and gave birth to babies who survived only briefly outside of the womb, and others faced severely delayed care while their doctors had to wait until they became “sick enough” to invoke the state’s narrow exceptions.

• At present, Texas is enforcing a total abortion ban, with extremely narrow exceptions to save the life or health of the pregnant person. However, as we have discussed previously in this Digest, the exceptions are drawn in broad non-medical terms that do not provide sufficient clarity to providers who face prosecution and loss of licensure if they are found to be in violation. This lack of clarity has directly harmed each of the plaintiffs in the lawsuit, and undoubtedly countless other Texans. In August, Texas Judge Jessica Mangrum issued a ruling that the state’s ban cannot be enforced in cases of complicated pregnancies, including when the pregnancy poses a serious risk to the pregnant person, exacerbates an existing health condition or where there is a lethal fetal diagnosis. The State immediately appealed that ruling, placing it on hold. 

• During this week’s hearing in Austin, the State argued that the exception is sufficient as is, and that any harm incurred by the plaintiffs as a result of the law is the fault of overly risk-averse doctors, not the legislation. In other words: sue your doctors, not the State. In response, the Plaintiffs argued that the exception is written in broad unclear terms and that providers have been given no meaningful guidance on how to properly interpret it, forcing them to make decisions under threat of prosecution and loss of career. The State also argued that the Plaintiffs lacked standing, or the right to bring the lawsuit, because they are not currently seeking abortions. The attorney for the State seemed to suggest that in order to have standing to challenge the statute’s exceptions, a person would need to be actively facing a pregnancy complication and bring a challenge to court at that time. The Plaintiffs’ attorney rightfully pointed out the absurdity of requiring pregnant people in the midst of medical complications to obtain a lawyer and seek a judge’s order prior to receiving medical care or having standing to challenge a harmful statute. 

• Although the Justices peppered both sides with questions throughout the hearing and appeared skeptical of the State’s argument at several points, the Plaintiffs’ case faces an extremely conservative Court. The Justices did not indicate when they will rule, and it will likely be a matter of months before an order is handed down. 
  

• Ohio:

• As we reported in last week’s Digest, Issue 1 has passed in Ohio, constitutionally protecting abortion rights up until the point of “viability.” However, the final votes had hardly been counted before Republican lawmakers began suggesting ways to block the democratically passed Amendment from going into effect, including potentially stripping state judges of jurisdiction to hear cases interpreting the Amendment. It remains to be seen whether Republicans will move forward with these efforts. 

• Although Issue 1 should automatically go into effect 30 days after its passage on November 7th, its passage did not repeal the 30+ abortion restrictions that remain on the books. These laws include the State’s ban on abortion after detection of fetal cardiac activity, which is currently being challenged in litigation. Last week, the Chief Justice of the State Supreme Court ordered the parties to submit arguments on how they believe the passage of Issue 1 impacts the litigation. Of course, the legally apparent answer is that the Amendment now renders the fetal heartbeat ban unconstitutional. However, it is not clear that Republicans are going to honor that interpretation. Democratic lawmakers are hoping to avoid the need to go to court and fight over the continued constitutionality of each of Ohio’s abortion restrictions. To that end, they have called for or introduced legislation to repeal certain conflicting laws and restrictions, including the heartbeat bill. However, it appears unlikely that the Republican-led legislature will be willing to step aside and clear the way for a smooth implementation of Issue 1. 

• In case we needed further reminding that the fight for bodily autonomy affects us all, almost immediately after their loss on Issue 1, Ohio Republicans began targeting trans rights. Within two days of the Issue 1 vote, Republicans announced hearings on legislation that would target drag performances, gender-affirming care for minors, and bathroom access. As lawmakers fight to limit bodily autonomy across issue areas, it serves as a clear reminder that the fight to retain control over our bodies cannot end with abortion. 
  

• Idaho: 

• Idaho has asked the U.S. Supreme Court to weigh in on whether the state can fully enforce its near-total abortion ban, which permits prosecution or license revocation of doctors in certain circumstances. At present, Idaho bans abortion at all gestational ages, with narrow exceptions to save the life of the pregnant person or in cases of rape or incest. Last year, the Biden Administration sued Idaho on the theory that its law is in conflict with federal Emergency Medical Treatment and Labor Act (EMTALA) obligations, which require physicians to provide care to anyone who presents with an emergency situation. 

• In August of 2022, U.S. District Judge B. Lynn Winmill sided with the Biden Administration and enjoined the ban for emergency cases, citing concern that doctors would be put in an impossible position of complying with both a harsh state ban and federal obligations under EMTALA while trying to make quick life or death medical decisions. Although a 3-judge panel out of the Ninth Circuit Court of Appeals initially allowed the state to enforce the ban while the case goes through the litigation process, a full panel of the Circuit Court reversed course, putting Judge Winmill’s order back in place for the time being. The State has now asked SCOTUS to weigh in on whether it can enforce the totality of its ban. 

• If the High Court agrees to hear the case, it will be the first time since Dobbs that the Justices have substantively considered an abortion-related challenge, and certainly the first time that they have considered a case involving prosecuting providers directly. A ruling from SCOTUS would send a signal to the states about how far they can reasonably take sweeping abortion bans. If the Court declines to hear the case, it may indicate that it is less willing to become involved in disputes over state abortion legislation at this moment. 

• Since Dobbs, Idaho has become one of the harshest anti-abortion states in the country. In addition to its abortion ban, it has come under scrutiny for the passage of its first-of-its-kind abortion trafficking law, as well as the sweeping scope of its “No Public Funds for Abortion Act,” which has chilled academic speech across the state. The abortion trafficking law is currently enjoined; however, earlier this week, the state Attorney General asked that the law be allowed to take effect during the pendency of the litigation. 

More News in Access: 

• A North Dakota Judge has declined to block the state’s ban on gender-affirming care for minors.

• Advocates in Missouri presented arguments on why a religious challenge to the state’s abortion ban should stay alive in the face of the State’s attempt to have the case resolved in its favor. 

•  In Florida, a ballot initiative to protect abortion rights is underway, but faces obstacles in gaining the support needed to succeed. 

• A Nevada judge has struck down an initial effort to create a ballot question protecting reproductive rights. He stated in his decision that the proposed initiative was “too broad” because it encompassed all matters relating to pregnancy and therefore violated the single-subject rule. This same argument was raised and failed in Ohio earlier this year.

• The Supreme Court has declined to intervene and allow Florida to enforce its drag ban while the ban is being litigated, meaning that a lower court order will remain in place, and the law will not be operative for the time being.

• Two transgender boys have sued the University of Missouri for ceasing the provision of gender-affirming care. 

• Over 100 Congresspeople have signed on to an amicus brief urging the Supreme Court to restrict access to mifepristone. 

• A ballot initiative effort in Missouri to add a rape exception to the state’s abortion ban has drawn criticism for its proposed requirement that victims contact a crisis hotline in order to invoke the exception. 

• As we gear up for 2024, the Biden campaign says that it wants to use a second term to, among other things, finish the job of restoring abortion rights. 

• Even as abortion continues to be a winning issue, some anti-abortion lawmakers are willing to undermine the democratic process itself to restrict the right to choose. 

• This week, the dating app Bumble became the lead signee on an amicus brief in the case challenging Texas’ exceptions to its abortion ban. Bumble cited its duty to speak out and provided myriad examples of how abortion bans are bad for business and bad for Texans. 

• For a look at where ballot initiatives have been proposed thus far (although this list seems to be constantly expanding), read here.

• In Virginia, Democrats have proposed an abortion rights constitutional amendment, following their legislative win earlier this month.

Issue of the Week: Iowa and the Business of Politicizing Medicine

In Iowa, abortion is currently permitted until the 20th week of pregnancy. However, the State is fighting to enforce a ban on abortion after detection of fetal cardiac activity. That ban, which was signed into law by Governor Kim Reynolds in July, was pushed through in a single day-long special legislative session and came under heavy scrutiny for the rushed and politicized process. Although the so-called heartbeat ban very briefly went into effect after its passage, it is currently blocked by a Polk County District Judge while litigation over the ban's constitutionality plays out. The Judge blocked all of the ban’s substantive provisions, but he did allow the section of the law directing the Iowa Board of Medicine to adopt rules relating to the heartbeat ban to stand. On Friday, November 24th, the Board considered a set of such proposed rules and, although not final, they provide critically valuable insight into what it looks like when non-medical professionals attempt to regulate the practice of medicine against the backdrop of a politically charged legal battle. 

The purported intent of the  proposed rules is to establish “standards of practice for physicians who perform or induce abortions.” However, they diverge from standard medical practice in both substance and language used. For example, with respect to the determination of whether a fetal heartbeat is detectable, they would require the performance of an abdominal ultrasound; however, this is not standard medical practice for abortion cases. One of the legislators supporting the heartbeat ban acknowledged in hearing testimony that using an abdominal ultrasound to determine the presence of cardiac activity can be an imprecise business, with results varying based on a number of factors, including the patient’s weight. With respect to the rape or incest exception to the law, the rules would require the crime to have been reported within 45 days for cases of rape or 140 days for cases of incest. This suggestion ignores all credible data that shows that many survivors of assault do not or cannot come forward to report the crime against them. The rules also suggest requiring doctors to ask their patients questions such as “did the sex act constitute a rape” and who the rape was reported to, or whether the sex act occurred between closely related persons (incest). These questions are wholly medically unnecessary and problematically intrusive–medical providers are not charged with investigating or interpreting potential crimes. One Des Moines OB-GYN expressed that these requirements deviate from standard patient care by requiring a provider to ask questions “unrelated to the patient’s health and potentially asking [the patient] to prove their honesty” and “trying to put the physician in a position of interpreting these complex legal scenarios” which “prevents us from just providing the best care that we can to our patients.” 

The rules fail to provide any meaningful guidance whatsoever about what may constitute a medical emergency such that a health or life of the pregnant person exception may be invoked. We have seen this same lack of clarity play out to disastrous results in other states with similar abortion bans in place. In regards to invoking the lethal fetal abnormality exception, the rules proposed suggestions fail to engage with the complex reality of fetal medicine, which often deals with uncertainty and changing probabilities. For every provider who makes one determination as to lethality, the state could likely find an opposing physician to testify that they would have concluded the opposite. 

In response to the proposed rules, a group of over 100 Iowa physicians signed on to a letter expressing their “grave[]” concerns about aspects of the proposed guidance, including that the patient-physician relationship may be jeopardized by the requirement to “demand[] horrifying details” about a potential assault. The physicians also expressed concern that, although the law subjects physicians to potential discipline, the proposed rules fail to give any details about what that discipline may entail, forcing providers to operate with an ambiguous threat of consequence looming over their practice. A public comment period will be open from December 13 until January 2nd, should interested parties wish to express their views on the propriety of the proposed rules. 

The insertion of politics into medicine is at the heart of the fight for abortion rights, and the proposed guidance out of Iowa is emblematic of this tension.  We have seen legislation pass across the country that is grounded in medical inaccuracies, such as improperly labeling early electrical impulses as a “fetal heartbeat” and the use of political terms like “unborn child” instead of medically accurate ones like “fetus or embryo.” We have seen states like Texas force physicians to practice their craft pursuant to rules and regulations that detract from the standard of care that they were trained to give and are deleterious to the physician-patient relationship. The flow of trust in a healthy physician-patient relationship goes both ways, with the physician trusting the patient to accurately convey their needs and the patient trusting the physician to meet them. Abortion bans and other legislatively-derived restrictions on healthcare stand in the way of this trust and all of our care suffers as a result.

REPRODUCTIVE HEALTH DIGEST (11/10/2023)

Developments in Abortion, Autonomy, and Access: 

In this week’s edition of the digest, we get to celebrate the outcomes of many of the elections that we have been reporting on for months, including those out of Kentucky, Ohio, Virginia, and Pennsylvania. The impact of these wins cannot be understated, but of course, the fight is far from over, and anti-choice actors continue to push to restrict access. Please read on for more information.

Legal Changes at the State Level

Brief Overview:

• Ohio: On election day, Ohioans successfully voted to enshrine reproductive rights in their state constitution, despite months of relentless opposition and underhanded political maneuvering from anti-choice groups and lawmakers in the state.

• Virginia: Virginia’s Republican Governor Glenn Youngkin has been vocal about his plans to pass a 15-week abortion ban if Republicans managed to take control of the state senate. In Tuesday’s election, however, Democrats not only retained their majority in the Senate, but flipped the House, securing the relative safety of abortion rights in the state for the immediate future.

• Kentucky: Kentucky’s gubernatorial race resulted in another huge win for abortion rights, with Democrat Andy Beshear securing reelection after running a heavily abortion-focused campaign.

• Kansas: A Kansas District Judge issued a ruling halting enforcement of several of the state’s barriers to abortion care, including a 24-hour waiting period and medically unnecessary and misleading mandatory disclosures. 

• Mifepristone Update: Missouri, Idaho, and Kansas have filed a new Complaint in the Northern District of Texas. The states are asking the court to reinstate 2016 regulations on the distribution of mifepristone, including a requirement for in-person dispensing. Missouri Attorney General Andrew Bailey has requested that the lawsuit be joined with the ongoing Alliance for Hippocratic Medicine v. FDA case.

• Idaho: Idaho’s abortion trafficking law has been temporarily halted by a federal court. The first-of-its-kind law makes it a crime to assist a minor in obtaining an abortion outside of Idaho without parental consent and has drawn a great deal of criticism for infringing on various fundamental constitutional rights. In her opinion, Magistrate Judge Debora Grasham explained that the case is not about abortion, but about “long-standing and well-recognized fundamental rights of freedom of speech, expression, due process, and parental rights.” She also expressed that Idaho cannot label the targeted activity as trafficking when the abortion obtained in another state would be a completely legal activity. The injunction is only preliminary, and we will continue reporting on this case as it develops.

Legal Analysis: 

• Ohio: 

• After months of tireless effort and unrelenting advocacy, Ohioans have officially voted to pass Issue 1, enshrining reproductive rights into their state constitution. The amendment protects contraception, fertility treatments, the choice to continue a pregnancy, miscarriage care, and abortion. With this vote, Ohio becomes the fourth state to explicitly protect reproductive rights in its state constitution, joining the ranks of California, Vermont, and Michigan. The path to the November 7th vote has been fraught with opposition, including an August special election to try and raise the threshold for passing a constitutional amendment from a simple majority to 60%, manipulative ballot summary language intended to mislead voters, and widespread misinformation campaigns about the impact of the amendment. Despite all of this, choice won in Ohio–a state that voted for Donald Trump in both 2016 and 2020.

• The impact of the passage of Issue 1 cannot be overstated. It is a critical indicator that, despite Republican insistence to the contrary, Americans want to have control over their own bodily autonomy and medical decision-making. And, this race inevitably serves as a test case for advocates working to pass ballot initiatives in other red-leaning states, including Florida. 

• For Ohio itself, the passage of Issue 1 should render the state’s so-called heartbeat bill void. The Amendment effectively codifies the Roe standard, prohibiting the government from intruding on reproductive rights pre ‘viability’, or in cases where the provider determines that the pregnant person’s life or health is at risk. Post-‘viability’, the state may prohibit abortion. The amendment defines fetal viability as “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.” A coalition of Republican lawmakers in Ohio have already said that they plan to do everything within their power to stop Issue 1 from taking effect, including “introducing several bills to address th[e] issue” and possibly stripping the judiciary of jurisdiction over the constitutional amendment. In other words, rather than allowing the will of the people to stand, these elected officials are willing to wield their positions of power to overturn it.
  

• Virginia:

• In another huge win for abortion rights this Tuesday, Virginia Democrats not only retained control of the state Senate, but took control of the House. Prior to this election, the state’s General Assembly was split, with Democrats holding the Senate and Republicans controlling the House. The state’s Republican Governor Glenn Youngkin has been clear about his plans to pass a 15-week abortion ban if Republicans managed to take control of the Senate, giving him the political structure needed to do so. Rather than taking the Senate, however, Republicans lost their majority in the House, meaning that Democrats now hold a majority in both legislative chambers. With the results of this election, abortion rights in Virginia are likely relatively safe for the time being. Virginia is the only southern state without an abortion ban in place and will remain a critical access point for pregnant people in the south.

• The Virginia election also offers important insight into what kind of messaging around abortion voters respond to. The campaign rhetoric leading up to the election day heavily centered on abortion, with Governor Youngkin testing new messaging strategies, including insisting that the bill that he would pass is not an abortion ban, but a “reasonable 15-week limit.” This shift in language reflected an overall strategy of painting Democrats as extreme on abortion and deflecting from the narrative that Republicans have gone too far on the issue. Had Governor Youngkin’s message succeeded, it would have signaled to other lawmakers that positioning a 15-week ban as a reasonable middle ground is a winning strategy. Instead, Virginia Republicans’ legislative loss delivers a severe blow to that agenda and reinforces the fact that autonomy over reproductive decision-making matters to voters. 

• Kentucky 

• The pro-choice wins continued in Kentucky this week, as the historically red state reelected incumbent Democratic Governor Andy Beshear. Like the legislative race in Virginia, abortion was a centerpiece of the Kentucky gubernatorial race. Governor Beshear ran against Republican Attorney General Daniel Cameron. 

• The pro-choice wins continued in Kentucky this week, as the historically red state reelected incumbent Democratic Governor Andy Beshear. Like the legislative race in Virginia, abortion was a centerpiece of the Kentucky gubernatorial race. Governor Beshear ran against Republican Attorney General Daniel Cameron.

• Kansas: 

• In Kansas, District Judge Christopher Jayaram issued a ruling halting the enforcement of several of the state’s barriers to abortion care. His ruling primarily focused on medically unnecessary disclosure requirements and the state’s mandatory 24-hour waiting period. Proponents of these restrictions assert that they are necessary for informed consent and protecting “maternal health and safety and the lives of the unborn.” However, Judge Jayaram disagreed, writing that the “Women’s Right to Know Act” “appears to be a thinly veiled effort to stigmatize the procedure and instill fear in patients who are contemplating an abortion, such that they make an alternative choice, based upon disproven and unsupportable claims.” 

• Judge Jayaram rejected the arguments that mandatory disclosures about certain “risks” associated with abortion were necessary to protect the pregnant person’s health. He wrote that “the weight of the credible evidence submitted…reveals that the State’s mandated disclosures regarding ‘increased’ risks (whether preterm labor or breast cancer)…are likely inaccurate, misleading, and/or not generally accepted views within the mainstream medical community” set forth to “promote the State’s clear preference in favor of childbirth, rather than abortion.” His opinion also determined that the imposition of a medically unnecessary 24-hour waiting period between receiving disclosures and obtaining the procedure and a 30-minute waiting period on the day of the abortion impose substantial roadblocks to pregnant people accessing their fundamental right to bodily autonomy. The injunction also halts the requirement that providers inform their patients of the possibility of abortion reversal, a scientifically unsupported non-standard practice. The removal of these restrictions will remain in place pending a trial, which is currently set for June 2024. 
  

• Mifepristone Update:

  • If you read this newsletter, you know that the abortion drug mifepristone has been under relentless attack this year, despite its exemplary record of safety and efficacy. Most notably, in Alliance for Hippocratic Medicine v. FDA, the plaintiffs brought a challenge to the FDA’s approval of the drug and subsequent changes to its terms of use. That case has wound its way through federal district and circuit courts out of Texas and now sits before the U.S. Supreme Court, who will decide whether to hear the case. 

  • If you read this newsletter, you know that the abortion drug mifepristone has been under relentless attack this year, despite its exemplary record of safety and efficacy. Most notably, in Alliance for Hippocratic Medicine v. FDA, the plaintiffs brought a challenge to the FDA’s approval of the drug and subsequent changes to its terms of use. That case has wound its way through federal district and circuit courts out of Texas and now sits before the U.S. Supreme Court, who will decide whether to hear the case. 

More News in Access: 

• Pennsylvania has elected Democrat Dan McCaffery to its open state Supreme Court seat, solidifying the liberal majority. Like other state races this election day, McCaffery’s campaign and supporters centered abortion rights as a key issue in the lead up to the vote. 

• In Michigan, pro-life groups and lawmakers are suing to overturn the constitutional amendment protecting abortion that Michiganders voted to pass last year. The lawsuit attacks the amendment on constitutional grounds, arguing that it creates a “super right” in violation of the First and Fourteenth Amendments to the U.S. Constitution. This will be an important lawsuit to watch. If it is successful, anti-choice groups will undoubtedly use it as a roadmap to attempt to overturn similar ballot measures in other states. 

• Idaho’s first abortion trafficking arrest has taken place, with Idaho officials arresting a mother and son based on their taking of a teenager to Oregon to obtain an abortion. Although they have not formally been charged with abortion trafficking, the prosecutor’s language mirrors identically the language in the trafficking statute. It also raises important questions about the strength of shield laws in cases where officials are able to use cell phone location technology to circumvent those laws and directly obtain information about whether a person visited an abortion clinic in another state. 

• In Florida, a lawsuit challenging the state’s restrictions on trans health for minors has received the go-ahead to proceed as a class action, an important development for protecting all trans people in Florida, not just the plaintiffs named in the lawsuit itself. 

• New data shows that in the year since Roe fell, abortions in the U.S. have not actually dropped nationwide. Instead, the states where people have gone for care have changed, and reliance on telemedicine has drastically increased. 

• Families out of Tennessee have petitioned the U.S. Supreme Court to hear their challenge to a Sixth Circuit ruling allowing the state’s ban on transgender healthcare to go into effect. Although the necessity of challenging the lower courts’ ruling is manifest, the challengers face a high court hostile to bodily autonomy rights–the same court that overturned Roe nearly a year and a half ago. 

• In Missouri, advocates are attempting to get abortion on the 2024 ballot. However, the state has repeatedly tried to stymie these efforts. Most recently, a Missouri appeals court ruled against Secretary of State Ashcroft’s suggested ballot language summaries, which contained inflammatory and false descriptions of the ballot measure, including a statement that it would “allow dangerous and unregulated abortions until live birth.”  

• A satanic temple in Indiana has lost its lawsuit against the state’s abortion restrictions. The temple argued that their beliefs allowed members to obtain abortions, in conflict with the abortion ban. The State’s Attorney General called the lawsuit “ridiculous.” 

• In Texas, the Biden Administration is arguing in federal court for the right of minors to obtain contraception from federally-funded Title X clinics without parental consent. The Administration faces an uphill battle with an extremely conservative circuit court that has repeatedly ruled against bodily autonomy. 

• One of the physicians involved in the lawsuit challenging the FDA’s approval of mifepristone has been recruited to an advisory board to assess the potential use of the drug to treat breast cancer. In a statement, he opined that “the concept of leveraging the effect of the abortion pill in life-saving as opposed to a life-taking scenario is extremely exciting,” tipping his hand that the opposition to mifepristone was always about ideology–not medical safety. 

• In more news out of Texas, the Fifth Circuit Court of Appeals heard oral arguments about whether and to what extent federal EMTALA obligations to treat patients in emergency situations conflict with the state’s extraordinarily narrow exceptions to its abortion ban. A similar argument about EMTALA and abortion is playing out in Idaho. 

REPRODUCTIVE HEALTH DIGEST (10/27/23)

10/27 - Developments in Abortion, Autonomy, and Access: 

In this edition of the digest, we discuss the latest attack on reproductive freedom in Texas and how it relates to broader efforts to restrict travel for abortion, Ohio’s upcoming ballot initiative, and rulings out of Colorado and Georgia.

Legal Changes at the State Level: 

• Brief Overview: 

  • Texas: In Texas, anti-abortion groups have sued the city of San Antonio over its Reproductive Justice Fund, asking the court to block the city from allocating any money to funds that help pregnant people pay for travel and lodging for out of state abortions. 

• Colorado: A federal judge has temporarily blocked enforcement of Colorado’s law barring facilities from providing or advertising provision of “abortion pill reversal” procedures or falsely implying that they provide abortion services if they do not. 

• Ohio: By the time the next issue of this digest comes out, Ohio’s vote on whether to enshrine abortion rights in the constitution will have occurred–this pivotal moment for the post-Roe abortion rights movement will inform how both sides approach the fight in the coming months and years. 

• Georgia: Georgia’s Supreme Court has ruled that the state’s 6-week abortion ban is constitutional and can remain in place under state law. The case will now go back to the lower court for further argument. 
  

Deeper Legal Analysis 

• Texas:

• Last month, the city of San Antonio, Texas passed its budget plan and agreed to allocate $500,000 of the $3.7 billion budget for the creation of a reproductive justice fund. The city has not yet determined how it will spend that money; however, hearings on the fund included discussion of sexual education, STI testing, pregnancy testing, resources for contraception and emergency contraception,  and potential funding for travel and lodging for people seeking abortions in states where it remains legal. Anti-abortion groups have filed a lawsuit against the city of San Antonio in an attempt to block the reproductive justice fund. They allege that it would use taxpayer money to fund “criminal organizations that violate the state’s abortion laws,” which prohibit helping someone  “procure” an abortion. Whether the state’s laws can apply to funding for travel to obtain a lawful abortion in another state is an open legal question, and San Antonio emphasizes that the funds will be used in “accordance with all federal and state laws.” After Dobbs, abortion funds in Texas temporarily ceased funding travel out of concern that they could face legal jeopardy; however, they resumed provision of service after a federal judge ruled that Texas likely had no authority to enforce its own abortion ban outside of state boundaries. Despite this prior ruling, the Plaintiffs in the lawsuit seek to stop the critical work done by abortion funds. John Seago, the president of plaintiff Texas Right to Life stated that they intend to take “discovery from every one of these abortion funds to expose their violations of state law and the criminal activities of their members and donors.” Potential discovery of donor, member and patient information related to an abortion fund at a time when Texas is pursuing an aggressively anti-choice agenda is chilling. Disclosure of the private details of who has traveled out of state to obtain an abortion, and who has helped to support that effort would be devastating. This is the latest in a series of brazen attempts by state Republicans to block pregnant people from traveling to receive legal care. We have seen similar efforts unfolding in states like Idaho, where an “abortion trafficking” law was passed, and in cities in Texas that seek to criminalize the use of their roads for abortion-related travel. The right to travel is fundamental, and efforts to restrict it must be pushed back against and rejected as undemocratic and inconsistent with a system of governance that claims liberty among its highest values.

• Colorado: 

• In Colorado, a federal judge has temporarily blocked enforcement of Colorado’s abortion pill reversal law, which would bar facilities from providing or advertising provision of “abortion pill reversal” procedures or falsely implying that they provide abortion services.. So-called abortion pill reversal is an experimental treatment that involves taking a dose of the hormone progesterone after taking the first of two medication abortion drugs in an attempt to “reverse” the medication abortion’s effects. However, as we discussed in a previous digest, the first attempt to clinically study the reversal protocol ended when three of its 12 participants had to be hospitalized due to severe bleeding. The procedure is not considered clinically standard care. After passage of the Colorado law restricting the procedure, a Catholic health clinic sued, arguing that the law infringed upon its First Amendment right to free religious exercise because it considers provision of abortion reversal services to be a religious obligation. Judge Daniel Domenico agreed with this argument and wrote in his ruling that the law must satisfy strict scrutiny–meaning that the state must “come forward with a compelling interest of the highest order” in order for the law to survive. Judge Domenico’s determination that the Colorado law infringes on religious freedom is an important development in a decades long debate about how to balance claims of sincerely held religious beliefs against other individual rights, including rights to contraception and abortion. His conclusion that the law targets religious practice and is not neutral and generally applicable is particularly interesting, as abortion opponents come from all different backgrounds–religious and non-religious–and the law applies  equally to any party that seeks to provide abortion reversal procedures, regardless of their affiliation. Judge Domenico’s ruling rests against the backdrop of the abortion rights movement’s ongoing  fight to regulate the conduct of crisis pregnancy centers and deter them from coercive and misleading tactics. You can read more about how CPCs operate here. 

• Ohio: 

  • We have discussed the Ohio ballot measure at length in this digest, but it is now only weeks away and it is more important than ever that voters understand what is on the ballot and get out to vote. Republicans have tried relentlessly to stop this ballot measure from making its way to voters, and have consistently spread misinformation about its contents and potential impact. . Issue 1 is backed by Ohioans United for Reproductive Rights and a coalition of providers and reproductive rights groups including Planned Parenthood Advocates of Ohio, the ACLU of Ohio, the Abortion Fund of Ohio, and Pro-Choice Ohio. It is opposed by prominent anti-choice groups, as well as Republican Governor Mike DeWine and other Ohio Republicans. The actual text of the ballot measure is relatively straightforward and largely codifies the Roe standard.  It would guarantee the right of every individual to make reproductive decisions, including abortion, up until the point of viability. It allows the state to prohibit or regulate abortion after viability. However, opponents of the amendment have attempted to create confusion and fear around the amendment in a number of different ways, including manipulating the language that voters will actually see in the ballot box. Most recently, Republicans have tried to reframe the issue as being one of parental rights. In a new campaign ad, Ohio First Lady Fran DeWine claimed that the amendment would “deny parents the right to be involved when their daughter is making the most important decision of her life.” Of course, the amendment does not actually say anything about parental rights, and it certainly does not “deny” parents the right to consult with their child about abortion. Ohio law generally requires parental consent for a minor to obtain an abortion, and Republicans seem to be arguing that the amendment’s language allowing individual decision-making would override this. But, whether the word “individual” will be interpreted to include minors is an open question, and in order to overturn the state’s currently enforced parental consent laws, a party would have to bring a legal challenge, and the state’s conservative Supreme Court is unlikely to strike the consent requirement down. Opponents of Issue 1 have also tried to argue that it could allow for greater access to gender affirming care. This argument is both transphobic and factually false. The amendment makes no mention of gender affirming care, and its supporters have not suggested that it would be applied in such a way; however, even if it were true that it would expand access to trans health care, that is just one more reason to support the amendment. Finally, it is worth reminding readers that, although abortion is currently legal until about 22 weeks in Ohio, the state has passed a 6-week ban that is in active litigation. If Issue 1 fails, the likelihood of that ban passing into effect and access in the state being decimated significantly increases.

• Georgia: 

  • Relying on Dobbs, Georgia’s Supreme Court has ruled that the state’s 6-week abortion ban is constitutional and can remain in place. The law bans abortion after detection of a fetal ‘heartbeat’ and contains narrow exceptions for the pregnant person’s life, pregnancies that are determined to be “medically futile,” and rape or incest prior to 20 weeks, if the crime is reported to law enforcement. Of course, even where an abortion ban has exceptions, we know that in practice these exceptions serve as political safeguards for anti-abortion legislators and fail to meaningfully increase actual access to care. Georgia’s law was one of many “trigger bans” that became operative after the fall of Roe. Previously, a lower state court ruled that it was unconstitutional because it was passed while Roe was still controlling federal law. However, that ruling was reversed and the law was allowed to take effect during the pendency of the ongoing litigation. This latest ruling from the state’s highest court deals a significant blow to arguments against the ban.. The court did not rule on the plaintiffs' additional arguments that the law violates privacy and equal protection rights under the state constitution, and the case will be handed back down to the lower court for further consideration on those points. . The ruling was praised by anti-abortion groups and conservative state politicians. Advocates for abortion access, including plaintiff SisterSong and the Biden Administration criticized the ruling and lamented the impact that it will have on an already severely limited reproductive healthcare landscape.

What else is happening in access? 

• In Alliance for Hippocratic Medicine v. FDA, diverse stakeholders have penned amicus briefs urging the Supreme Court to preserve access to mifepristone. Supporting the Biden Administration’s appeal are “reproductive rights organizations, medical and legal experts, patient advocacy groups, 257 members of Congress, 23 states and D.C., over 600 state legislators, state and local governments and officials, and pharmaceutical representatives.” In the coming months, the Court will decide whether it will hear the case and whether to alter the availability of mifepristone.

• In the wake of sweeping state restrictions on abortion and driven by a deep sense of duty, many abortion providers have made the difficult decision to become traveling providers, oftentimes at great personal cost to the stability of their own lives. Read the account of one such doctor here. 

• After being denied a necessary abortion in the face of a devastating fetal diagnosis, Tennessee woman Allie Phillips has decided to take the fight into her own hands and run for a seat in the Tennessee statehouse. After her experience of being turned away for care in her home state, she met with the representative whose seat she is now challenging–during this meeting, he reportedly expressed to her that he had been under the impression that complications only occur during a person’s first pregnancy. 

• Jeff Landry, a Trump-supported Republican and anti-abortion, anti-lgbtq+ politician, has won Louisiana’s governor’s race. 

• In Michigan, Democratic state Rep. Karen Whitsett continues to hold-up passage of the Reproductive Health Act, citing concerns about the removal of restrictions like a 24-hour waiting period and the potential for state funding of reproductive services. 

• The Wisconsin legislature has passed a series of anti-abortion laws and a ban on gender affirming care for minors, all of which Democratic Governor Tony Evers has said he will veto. 

• The 11th Circuit Court of Appeals has ruled against Florida Governor Ron DeSantis’s anti-drag bill on First Amendment grounds. 

• With all eyes on state-level elections around the country that are turning on abortion rights, watch out for ways in which Republicans are changing their language and messaging on the subject in order to paint Democrats as extreme. After anti-abortion campaigns failed to receive the support that Republicans expected in 2022, some politicians are trying to flip the script. 

• The new Speaker of the House Mike Johnson, a Republican from Louisiana, has a long anti-abortion and anti-lgbtq+ history, including previously serving as counsel for the Alliance Defending Freedom, the group behind many state abortion bans and restrictions. 

• Japan’s Supreme Court ruled unconstitutional a law that required transgender people to undergo mandatory sterilization in order to receive legal gender recognition.
  

REPRODUCTIVE HEALTH DIGEST (10/13/23)

10/13 - Developments in Abortion, Autonomy, and Access: 

In this week’s digest, we discuss the recent rulings out of Idaho and North Carolina, the Supreme Court’s new term, and the importance of abortion in upcoming state-level elections. Read our issue of the week for a dive into the role and power of abortion storytelling in the reproductive freedom movement.

Legal Changes at the State Level: 

• Brief Overview: 

  • Idaho: About two weeks ago, a U.S. Court of Appeals ruled that Idaho’s near total abortion ban does not conflict with obligations to provide emergency care under the Emergency Medical Treatment and Labor Act (EMTALA). This week, the Ninth Circuit has agreed to reconsider that ruling.  

  • North Carolina: A federal judge has blocked 2 portions of North Carolina’s 12-week abortion ban from taking effect during litigation. Judge Catherine Eagles halted enforcement of the requirement that abortions after 12-weeks must take place in a hospital (rather than a clinic or other appropriate setting), and she extended her block on the requirement that providers determine and document the intrauterine location of the pregnancy prior to prescribing medication abortion. 

  • Virginia: As with other state-level elections, abortion has taken center stage in Virginia’s upcoming legislative race. The outcome of the election will determine the political viability of Republican Governor Glenn Youngkin’s proposed 15-week abortion ban. 

  • Mifepristone: The Supreme Court has returned for its new term, and in the coming months it will decide whether or not to hear the case challenging the FDA’s approval of mifepristone. Whether it decides to hear the case or not, the long and short term consequences  for access to the drug will be significant.
    

Deeper Legal Analysis 

• Idaho: 

  • On September 29th, the Ninth Circuit Court of Appeals issued a ruling that Idaho’s total abortion ban does not conflict with obligations under the federal Emergency Medical Treatment and Labor Act (EMTALA). On Tuesday, October 10, however, the Court agreed to reconsider that decision.  Previously, the Biden Administration sued the state of Idaho, arguing that its ban, which prohibits abortion at any gestational age unless to save the pregnant person’s life, was so strict as to run afoul of EMTALA’s federal requirements. Under EMTALA, any hospital or medical system that receives medicare funding must provide stabilizing emergency care to patients presenting at the E.R., regardless of their ability to pay. The Biden administration argued that Idaho’s narrow “life” exception put doctors in a position of risking criminal prosecution under Idaho’s state laws or risking the loss of funding under EMTALA. In August, a district court judge sided with the administration and ruled that emergency room doctors could not be subjected to criminal penalties under Idaho’s abortion ban for providing abortions in emergency cases where it is stabilizing care. However, a Ninth Circuit panel reversed that ruling.  Although the Ninth Circuit has a well-earned reputation for being one of the most liberal federal appeals courts, the panel that overturned the district court’s ruling was made up of three  Trump appointees. The panel unanimously found that the state’s law, which requires a physician to refrain from performing an abortion unless they believe it necessary to save the pregnant person from death, was sufficient under federal obligations. However, with Tuesday’s order granting reconsideration, the lower courts’ injunction is back in place, and providers are temporarily protected in cases of emergency. The case will be reconsidered by an “en banc” panel of 10 judges, randomly selected from the Court’s 28 active judges.

• North Carolina:

• In North Carolina, a federal judge has issued an order blocking 2 portions of the state’s 12-week abortion ban from taking effect for the time being. Specifically, Judge Catherine Eagles (1) halted enforcement of the requirement that abortions performed after 12 weeks must take place exclusively in hospital settings; and (2) extended the block on the requirement that the location of the pregnancy in the uterus be confirmed prior to prescribing a medication abortion. The order will stay in place until the litigation is resolved. As you may recall, when North Carolina passed its abortion ban over Governor Roy Cooper’s veto, it was the subject of intense scrutiny for its many medically unnecessary requirements, each of which act as additional barriers to care. With respect to the requirement that a provider document the intrauterine location of the pregnancy prior to prescribing a medication abortion, Judge Eagles found that the statute’s language is so vague that providers cannot fairly know what is required of them. She reasoned that, because pregnancy is not detectable by ultrasound until 5-6 weeks, providers may be subjected to punishment for a failure to definitively locate an early pregnancy.  This would then operate as an implicit ban on medication abortion early in pregnancy despite its legality until 12 weeks. With respect to the requirement that abortions after 12 weeks be performed in hospitals, Judge Eagles correctly found that miscarriage care performed after 12 weeks in pregnancy is not required to take place in a hospital, despite it being the exact same procedure as the one used in cases of surgical abortion. Republicans supporting the requirement offered no sound reason why the location requirement should differ between abortion and miscarriage patients. Although this is far from the final word on the details of the state’s abortion ban, it sets an optimistic precedent for the current challenge, and we will continue to update you as the litigation progresses.
  

• Mifepristone: 

• The Supreme Court has returned for its new term, and in the coming months it will decide whether or not to hear the case challenging the FDA’s approval of mifepristone. As a reminder, the Biden Administration filed a Petition for a Writ of Certiorari with the U.S. Supreme Court in September. A “cert petition” is the process by which a party asks the Supreme Court to review an order of a lower court–typically a federal appeals court. Unlike the federal courts of appeals, where a party has the right to have their appeal heard, the Supreme Court is not obligated to take up a case. In fact, in any given term, it grants cert in under 5% of cases. However, given the extremely public and vitally important nature of this particular case, the likelihood that the Court takes it appears higher than usual. Regardless of what the court decides, it will have massive consequences for access to the drug. If the Justices agree to hear the merits of the case, the Biden Administration faces an extremely conservative court–the very same court that overturned Roe just over a year ago. The Court could (and likely would) rule in ways that severely restrict access to the drug and upend the FDA’s regulatory process. But, if the Court declines to take the case, its stay on the lower courts’ rulings will expire and the Fifth Circuit’s ruling will go into effect, reimposing unnecessary and medically unsupported restrictions on the terms of use for the drug. As uncertainty over the future of mifepristone looms large, a small number of certified pharmacies across the country have begun directly dispensing mifepristone, with CVS and Walgreens indicating that they are also seeking certification to do so. 

• Virginia: 

• Across the country, state level elections are turning on the question of abortion policy, and Virginia’s legislative race is a key one to watch. Currently, Virginia’s Republican Governor Glenn Youngkin has not had the legislative power needed to pass abortion restrictions, making Virginia one of the only southern states where abortion remains relatively accessible. However, if Republicans take control of the state legislature, this will change. Governor Youngkin has consistently expressed his desire to pass a 15-week abortion ban, with narrow exceptions, and the debate over abortion has taken center stage in the runup to the election. Both sides attempt to paint the other as extreme on the issue, and each has invested heavily in political ads and messaging. This week, Governor Youngkin’s PAC spent 1.4 million dollars on an ad focused on abortion, with the sound of a baby cooing and an ultrasound heartbeat in the background throughout. He insists that the proposed 15-week ban is not a ban at all, but a “limit.” How Virginians turn out to vote will serve as a bellwether for other states as they strategize for their own legislative races.  And ahead of next year’s presidential election, Virginia offers a test case for the effectiveness of both pro and anti abortion messaging and tactics. 

What else is happening in access? 

• Illinois recently had its day in court over a challenge to a 2017 state law requiring providers who do not perform abortions to give referrals to or information about abortion providers to patients who request it. This case is relevant to the simultaneous litigation around Illinois laws regulating crisis pregnancy centers. This article offers a thorough breakdown and contextualization of the ongoing cases. 

• Massachusetts’ Attorney General has appointed Sapna Khatri as Director of its new Reproductive Justice Unit, the Unit will be dedicated to ensuring that Maryland enacts strong and comprehensive protections for both reproductive healthcare and gender affirming care. 

• As we mentioned in our last digest, House Republicans attempted to advance a package of appropriations bills that included a provision severely restricting access to medication abortion. Thanks to heavy bipartisan opposition, that bill failed. 

• Two shotgun rounds were fired into the front entry of a Planned Parenthood in Helena, Montana. No one was injured; however attacks and threats against providers and clinics have increased in recent years. 

• Advocates in Nebraska have taken a page out of the pro-life playbook and put up billboards and banners pushing back against the state’s restrictive laws. 

• Another Texas county has passed anti-abortion trafficking laws, meaning that it outlaws the use of its roads to seek an abortion. Anti-choice advocates praised this move specifically because of Cochran County’s location on the New Mexico border, a key state for Texans traveling to  access care. 

• Russia, although historically fairly liberal on abortion, has passed restrictions on the use of medication abortion, continuing the trend of countries around the world moving backwards on reproductive rights. 

• As we reported last week, Missouri is engaged in an ongoing fight to enshrine reproductive rights into its constitution. A Republican-led group has now weighed in in favor of easing restrictions in the state’s strict law, calling for broader exceptions. 

• In Oklahoma, a judge has allowed the state’s ban on gender affirming care to go into effect. 

• For a solid roundup of ongoing abortion litigation, read here. 

• A North Carolina family, doctor, and two LGBTQ+ rights groups are suing to block the state’s gender affirming care ban for minors. 
  

Issue of the Week:Abortion Storytelling

Storytelling is powerful. It is how we share our human experience with others and come to learn about, relate to, and empathize with theirs. In this digest, we talk a lot about policy, legislation and litigation, and while those shape our political and legal landscape, they do not tell the full story. Legal arguments can be abstracted and compartmentalized–we can discuss and debate them intellectually without engaging more deeply with their very real human impact. But that human impact is powerful, and sometimes, the most compelling way to reach others is by simply and authentically telling our own stories. 

Throughout the reproductive justice movement, storytelling has played a huge role in opening up dialogue and breaking down stigma. And in the past several years, abortion storytelling has taken on more and more importance. Each story told allows others to see themselves reflected back and understand the nuance and incredible complexity of each person’s circumstances and decisions. Over the past year, we have seen countless harmful and restrictive laws passed in states across the country, and storytellers give a voice to the impact of those  laws and the necessity of continuing to fight for access. In states where the message from the government is that having or seeking an abortion is a morally reprehensible choice, access to stories of people who have made that choice can be empowering, validating and healing. When discussing the issue with anti-abortion advocates, storytelling can put a face to a policy and act as a tool for facilitating more empathetic and grounded conversations. Storytelling also plays an important role in moving political forces and shaping public opinion on a larger scale. 

You may recall a few years ago in Texas, when a high school valedictorian made headlines and went viral for using her commencement speech to address the passage of SB-8 (the Texas fetal heartbeat bill) and how it would impact the futures of her fellow graduates. While her speech was not an abortion story, it made waves as a reminder that personally speaking out has the power to move the listener. Organizations like We Testify make it their mission to change the narrative by amplifying the voices of abortion storytellers, “particularly those of color, those from rural and conservative communities, those who are queer-identified, those with varying abilities and citizenship statuses, and those who needed support when navigating barriers while accessing abortion care.” Similarly, Abortion Out Loud uses the power of storytelling as a tool for breaking down stigma and advocating for abortion access. In addition to written stories, activists with Abortion Out Loud “lead abortion speakouts, [] public education campaigns, and work with campus and local officials to strengthen young people’s access to abortion services.” Dr. Meera Shah, a family medicine physician and advocate for reproductive health used the power of storytelling, combined with her expert insights as a physician who provides abortions, to write her book “You’re the Only One I’ve Told, the Stories Behind Abortion.” Through the stories told, she was able to  give a platform to the diverse experiences of abortion patients. 

The truth is that everyone knows and loves someone who has had an abortion (whether they know it or not). So, as we continue in the fight for reproductive freedom and policy debates swirl around us, I encourage everyone (regardless of your position) to take a moment to explore these resources, read some of the stories and consider the storytellers behind them.

REPRODUCTIVE HEALTH DIGEST (9/29/23)

9/29 - Developments in Abortion, Autonomy, and Access: 

The legal landscape for abortion and bodily autonomy continues to change rapidly from week to week as litigation unfolds, legislatures debate and advocates organize to push back. Please read on for a discussion of the latest updates:

Legal Changes at the State Level: 

• Brief Overview: 

  • Ballot Initiatives Across the States: Advocates in Ohio, Arizona, Nevada and Missouri, among other states, are launching or continuing their bids to get abortion on the ballot in their state, in hopes of enshrining reproductive rights into their state’s constitution. 

  • California: In California, Attorney General Rob Bonta has sued a group of anti-abortion counseling centers and an anti-abortion group, arguing that their claims about medication abortion reversal procedures are misleading and medically unproven. 

  • Ohio: On Wednesday, September 27th, the Ohio Supreme Court heard oral arguments in the ongoing challenge to the state’s 6-week abortion ban. The ban is currently blocked by a lower court ruling, but the state has appealed that preliminary order, arguing that the ban should go into effect while the litigation plays out. 

  • Kentucky: Abortion has taken center stage in Kentucky’s gubernatorial race, highlighting how the role of abortion in state-level elections has drastically changed post-Dobbs.
    

Deeper Legal Analysis 

• Ballot Initiatives Across the States: 

  • Advocates in states across the country are mobilizing to get abortion protections before voters in 2023 and 2024. In 2022, states like New York, Vermont, and Michigan voted to amend their constitutions to protect reproductive freedom, and voters in Kansas, Montana, and Kentucky rejected proposed amendments that would have limited abortion rights.  In fact, every single time reproductive rights appeared on the ballot in 2022–they won. Advocates are hoping to build on that momentum and constitutionally protect reproductive health in states across the country. The level of protection in the language of the proposed ballot initiatives varies from state to state, and they are each in different procedural stages; however, their success or failure will serve as a model for other states in the coming months and years. Please note that the states highlighted below are not a  comprehensive list of ongoing ballot initiative efforts. 

    • Ohio: We have reported extensively on developments with the ballot initiative in Ohio, and we are now a matter of weeks away from the vote. As a review, the Ohio reproductive health ballot initiative has faced opposition from anti-choice Republicans at every turn. First, they argued that the proponents of the initiative needed to collect twice as many signatures as is standard. When that effort was unsuccessful, the state held an August special election to try and raise the threshold for passing a constitutional amendment from a simple majority to 60%. Voters themselves shot down that attempt. Advocates were then forced to file another lawsuit after the ballot board returned summary language (the language that voters will actually see in the ballot box) that was materially misleading. Unfortunately, this past week, the Ohio Supreme Court issued a ruling approving the majority of the ballot board’s language. Among other things, this means that the word “fetus” will be changed to “unborn child” in the summary. The Supreme Court did rule that the ballot board must rewrite the summary to change its reference to “citizens of the state” being prohibited from passing laws restricting access, because it is the state government, not the citizens of the state, that will be constrained from doing so. As a reminder, Ohio’s proposed ballot initiative only includes protections until “viability,” with exceptions for the pregnant person’s life or health. Ohioans will vote on the referendum on November 7th. Throughout the long road to this election day, Ohio Republicans have consistently attempted to undermine the ballot initiative, choosing to place their own political agenda over the democratic process. Efforts to subvert direct democracy cannot be allowed to succeed. 

    • Arizona: Arizona for Abortion Access announced that they have begun collecting signatures for a 2024 ballot initiative protecting reproductive health care. The proposed amendment would make abortion a constitutionally protected right, prior to viability. In order to succeed, advocates need to collect almost 400,000 signatures before July 3rd, 2024. As the law currently stands, abortion is legal until 15 weeks in Arizona. 

    • Missouri: In Missouri, advocates are locked in their own battle over the language of an abortion ballot initiative. In a win for reproductive freedom, a Missouri Judge rejected misleading and inflammatory Republican-written summary language that described proposed constitutional amendments as allowing “dangerous and unregulated abortions until live birth.” The same judge also ruled against anti-abortion efforts to argue that the state auditor’s cost estimates were too low, based on their failure to provide any credible evidence to support that argument. Voters will decide the issue in 2024.

    • Nevada: In Nevada, Nevadans for Reproductive Freedom have filed a petition to add pre-viability abortion protections to the state constitution. Nevadans will have to collect just over 100,000 signatures in order to advance the petition. And, it is a long road ahead. If voters approve the ballot initiative in 2024, it would need to appear again on the ballot in 2026 for final approval before passing into law. 

• California:

• California Attorney General Rob Bonta is suing anti-abortion organizations over their abortion-pill reversal claims. AG Bonta’s suit argues that these organizations are advertising medically unproven treatment and misleading vulnerable pregnant people, in violation of the state’s False Advertising and Unfair Competition laws. The groups claim that the effects of mifepristone can be blocked by administering a large dose of progesterone; however, the only clinical trial ever held on the practice had to be stopped after 3 of the 12 women experienced severe bleeding. Fights over abortion pill reversal claims are ongoing across the country, with Colorado attempting to ban the practice for a lack of proven safety, and Kansas attempting to pass a law requiring abortion providers to tell their patients that their medication abortion can be reversed.
  

• Ohio: 

• There is more news out of Ohio this week, as the state’s Supreme Court heard oral arguments on whether to reinstate a ban on abortion after fetal cardiac activity (around 6-weeks). Previously, a lower court judge enjoined enforcement of the ban pending the outcome of the litigation, finding that it was likely unconstitutional. The state’s high court on Wednesday heard oral arguments on 1) whether the state can immediately appeal that judgment in order to have the ban reinstated while litigation plays out; and 2) whether the doctor plaintiffs have standing to bring the claim on behalf of their patients. The Court is currently made up of 4 Republicans and 3 Democrats. Although the court did not clearly indicate which way it would rule, it peppered both sides with questions throughout their arguments, and several of the justices appeared skeptical of the state’s argument that it would be irreparably harmed if the abortion ban was not immediately reinstated. An opinion from the court is likely to come only weeks or days before Ohio voters will determine whether to protect abortion rights in the constitution, as discussed above.
  

• Kentucky: 

• In Kentucky, abortion has taken center stage in the ongoing gubernatorial race, highlighting how the role that abortion plays in state-level politics has dramatically shifted since Dobbs. Kentucky Attorney General and gubernatorial candidate Daniel Cameron indicated last week that, if elected, he would be willing to sign a bill with exceptions for rape or incest if one crossed his desk–a complete reversal of his prior position stance. Previously, Cameron consistently indicated that he would defend the law as it is currently written, with only a narrow exception for the life of the pregnant person. Cameron’s opponent, Democratic Governor Andy Beshear has been aggressive in pushing back on Cameron’s anti-choice positions. His campaign recently released a political ad featuring a young rape survivor and accurately pointing out that the law that Cameron supports would leave her without options for care. Kentucky democrats rarely focused on abortion as a major campaign issue when Roe was still good law, with candidates instead seeking to take a middle ground and avoid the hot-button issue. However, post-Dobbs, voters have made it clear that reproductive health is a key issue for the electorate, and politicians have responded in kind, staking out their positions. 

What else is happening in access? 

• In a truly terrifying must-watch story, the Texas attorney behind the state’s 6-week abortion ban has asked Texas abortion funds for information about every abortion that they have “assisted or facilitated in any way” in the last two years, “including details about the abortion provider, the city and state where the abortion patient lived, as well as the identity of every person,” other than the patient or their family, who assisted in the process. 

• Michigan’s Reproductive Health Act has stalled as a democratic legislator objects to using Medicaid funds for abortion. If passed, the Reproductive Health Act would repeal a host of outdated and medically unnecessary abortion laws in Michigan, such as required waiting periods. It would also ensure that a person’s access to abortion is not dependent on the specifics of their insurance plan. 

• In a piece of fantastic news, a Montana judge has blocked the state’s ban on gender-affirming care for minors, finding that the ban likely discriminates against minors and intrudes on their constitutionally protected privacy rights. 

• North Dakota families are challenging the state’s ban on gender-affirming care for minors. 

• House Republicans have introduced a bill to ban medication abortion nationwide. 

• Poland has created a laboratory test capable of detecting whether a person has taken abortion pills. The test has purportedly already been used in investigations into pregnancy outcomes. This technology could easily be adopted in other countries, and Americans should be aware of this looming possibility. 

• We all know how interconnected the fights for abortion rights and gender-affirming care are, but if you need any more evidence–just take a look at how the opposition treats the two issues. For more perspective on the cross-pollination between these movements, take a few moments for this must-read piece from the New York Times.  

• As we reported in the last digest, Planned Parenthood has resumed providing abortion services in certain Wisconsin clinics for the first time in over a year. Anti-abortion groups are calling on the District Attorneys in those counties to put a stop to it, despite the D.A.'s pledges to not prosecute cases under the 1849 abortion law that the pro-life groups rely on for their argument against access. 

• On September 21st, the Fourth Circuit Court of Appeals heard oral arguments on the question of whether insurance providers must provide coverage for gender-affirming care. The panel of judges, 8 of whom were appointed by Democrats and 6 by Republicans, did not indicate at oral argument which way they will likely rule.
  

Issue of the Week: Pregnancy Criminalization

This week’s Issue of the Week is guest-written by Mahathi Vemireddy, the Knighton-Newman Legal Fellow at Pregnancy Justice. Pregnancy Justice is the nation’s leading advocacy organization in the fight against pregnancy criminalization. 

In the United States, pregnant people face a unique set of obstacles: they may experience discrimination in the workplace, difficulty accessing prenatal care, and biased medical systems and providers that contribute to high maternal mortality rates. In recent years, the Supreme Court and several states have gone even further to make pregnancy more precarious for millions of Americans by revoking their fundamental right to make decisions about their pregnancies and their own bodies. While abortion restrictions have been prominently reported, a lesser-known but troubling danger many pregnant people face is the looming threat of pregnancy criminalization. Pregnancy criminalization occurs when a person is charged with alleged crimes arising from their actions or omissions during pregnancy or for their pregnancy outcomes. These types of criminal prosecutions have already occurred in the United States, but the number of cases will likely increase in a post-Dobbs America. 

Pregnancy criminalization first became widespread in the 1980s amid the disastrous and racist  “crack baby epidemic.” This unsupported moral panic armed the anti-abortion proponents with a false narrative that played on racist, sexist, and classist tropes that villainized Black women and poor people. Unfortunately, this rhetoric continues today and has essentially normalized the scheme to criminalize pregnant people despite every leading national health organization condemning the practice. Black women were overwhelmingly the victims of pregnancy criminalization in the first several decades after Roe.

Just this month, Pregnancy Justice released a report documenting cases of pregnancy criminalization from January 2006 until the Dobbs ruling in June 2022. Over this period, we identified 1,396 cases. This represents a startling increase compared to the 2013 Pregnancy Justice study which reported 413 cases between 1973 to 2005. There have been over three times as many cases in half as many years. While cases were tracked in 46 states, the vast majority of cases occurred in just five states: Alabama, South Carolina, Oklahoma, Mississippi, and Tennessee. Moreover, more than 9 in 10 cases involved allegations of the co-occurrence of pregnancy and substance use. 

State actors have increasingly penalized pregnant people through an alarming combination of carceral approaches to substance use and the spread of fetal personhood laws. Fetal personhood is the radical and false belief that an unborn fetus should have equal legal rights and protections to a living person. Moreover, fetal personhood laws are often interpreted to pit the interests and rights of the pregnant person and fetus as staunchly opposed. This leads to depriving pregnant people of their own liberties and autonomy in favor of a fetus. 

Notably, the charges a pregnant person might face range from child neglect to endangerment to manslaughter to homicide. Local prosecutors sometimes use homicide statutes to criminally prosecute pregnant people for experiencing pregnancy loss. Importantly, there is very little a pregnant woman can do, including use illicit substances, to cause a pregnancy loss. Prosecutors may also criminalize pregnant people and parents under child abuse and neglect laws for their actions or omissions during pregnancy. These cases frequently rely on a misconception that in-utero substance exposure to the fetus during pregnancy causes substantial harm to the child post-birth. Our report finds that one in three cases was first instigated by a medical professional, and two in five involved family regulation workers. 

The threat of prosecution and criminalization also prevents pregnant people from actively seeking necessary medical care, including perinatal services and substance use treatment. While all pregnant people are vulnerable to these statutes, low-income women and people of color are particularly harmed, further driving disparities in access to care and treatment. The states’ use of prosecution and punishment does not address the underlying public health needs of pregnant people and people with substance use disorders. To move forward, advocates need to understand how pregnancy criminalization, the war on drugs, and the country’s maternal health crisis are all interconnected public health concerns and require coordinated strategies to address the issues facing each impacted community.

There are many ways to challenge pregnancy criminalization and prevent future cases including: (1) providing zealous legal advocacy for pregnant people and making use of medical experts and scientific evidence in their defense; (2) increasing public understanding of the realities of pregnancy and substance use;  (3) repealing and preventing fetal personhood legislation in your state; (4) organizing to enshrine full legal rights and protections for pregnant people in state and federal law; and (5) dismantling and decoupling the healthcare system from the policing and surveillance of poor communities and communities of color.

Pregnancy Justice works with defense attorneys, medical experts, and advocates to provide free legal assistance for those facing charges stemming from their pregnancy outcome and/or their actions or omissions during their pregnancy. We also engage in policy advocacy, coalition building, public education campaigns, and track and document cases to advocate on behalf of pregnant people and their families. If you need assistance with a case or would like to get involved, please contact us. 

REPRODUCTIVE HEALTH DIGEST (9/15/2023)

Developments in Abortion, Autonomy, and Access: 

Abortion is set to go before the U.S. Supreme Court yet again, as the case challenging approval of mifepristone by the U.S. Food and Drug Administration (FDA) winds its way to the high court. Florida’s Supreme Court heard oral arguments last week on the constitutionality of the state’s abortion restrictions. Wisconsin Republicans are threatening to unseat a duly elected judge for politically partisan reasons, while Planned Parenthood Wisconsin has announced that it will resume offering abortion services for the first time in over a year. Threats to interstate travel continue, as states seek to extend their abortion bans beyond state borders. And, state-level battles over gender-affirming care for minors continue across the country. Because of the sheer volume of abortion and bodily autonomy news in this week’s digest, we are breaking from our normal format and omitting the “issue of the week.” But stay tuned as we share an extra special edition of that regular feature in the next Digest! Now, let’s dive into the key news from the last two weeks.

Legal Changes at the State Level

Brief Overview:

• AHM v. FDA (mifepristone): The Biden Administration has officially asked the Supreme Court to review the Fifth Circuit’s ruling limiting the availability and terms of use of mifepristone. Because of the high profile nature of the case and the important and consequential legal issues involved, it is extremely likely that SCOTUS will agree to hear the case. 
  

• Wisconsin: 

  • Planned Parenthood in Wisconsin announced on Thursday that it will resume providing abortion services on Monday, September 18 for the first time in over a year. This decision follows a July preliminary ruling from a state judge that an 1849 pre-Roe statute does not prohibit abortion. 

  • Wisconsin Republicans are threatening to remove recently elected Justice Janet Protasiewicz over claims that she should recuse herself from cases involving redistricting. Although this may not sound like a reproductive rights issue at first glance, Justice Protasiewicz’s election has shifted the court to a liberal majority at a time when Wisconsin’s abortion laws face a legal challenge that is likely to end up before the state’s highest court. 

• Florida:

  • Last week, Florida’s Supreme Court heard oral arguments about whether the state constitution’s privacy clause protects the right to abortion. The court’s decision will determine the constitutionality of the state’s currently operative 15-week abortion ban, as well as the 6-week abortion ban that Governor Ron DeSantis signed into law earlier this year. 

• Alabama:

  • Alabama’s Attorney General is doubling down on his position that helping a pregnant person obtain an out-of-state abortion is a prosecutable offense.

Legal Analysis: 

• AHM v. FDA (mifepristone): : 

• The Biden Administration has filed a Petition asking the Supreme Court to hear a challenge to the Fifth Circuit’s ruling limiting the availability of mifepristone, one of two drugs used in a standard medication abortion regime. The Supreme Court is not obligated to hear cases that come before it from the circuit courts of appeal. Generally speaking,  the Court denies the vast majority of requests for review, opting to not interfere with the lower courts’ judgment. However, the Supreme Court seems positioned to grant review of this case, given its high profile nature, potential consequences for other areas of the law, and several departures from well-accepted rules of law in the lower courts’ decisions. Now that the Biden Administration has filed its Petition, the anti-abortion physician organizations driving the litigation will have an opportunity to file their own brief, opining on whether they think the Supreme Court should review the case. It is likely to be several months before the Supreme Court makes a decision. If the Court agrees to hear the case, the parties will then submit their arguments on the merits. The outcome of this case will be incredibly consequential for both reproductive rights and health law generally, as it seemingly stands as the first time that a court has intervened to override the FDA’s expert judgment about the safety of a particular drug. 

• As a reminder on where this case stands, the Fifth Circuit issued a decision in late August finding that the FDA’s 2016 relaxation of mifepristone’s use regulations was improper, but allowing the drug to stay on the market because the plaintiffs’ challenge to the FDA’s underlying approval in 2000 was outside of the statute of limitations. At this time, the availability of mifepristone remains unchanged, as a result of a previous Supreme Court order that stayed the effect of any lower court decisions during the pendency of litigation.
  

• Wisconsin:

• In a huge win for abortion access in Wisconsin, Planned Parenthood Wisconsin has announced that it will resume providing abortions on Monday, September 18th. Abortion has been unavailable in Wisconsin since June of last year, with providers fearing prosecution under an 1849 anti-abortion law that came back into play after Roe was overturned. However, in July of this year, state court Judge Diane Schlipper issued a ruling that the 1849 law does not apply to abortion, but instead criminalizes feticide, or the killing of a fetus by assaulting or battering the pregnant person. “There is no such thing as an ‘1849 abortion ban’ in Wisconsin,” she wrote. Armed with this ruling, Planned Parenthood has made the decision to resume operations, providing critical access to healthcare for countless pregnant people in the region. According to Planned Parenthood, Madison’s website, they offer in-clinic abortion until 20-weeks, as well as medication abortion. Although this is incredible news, it is important to note that litigation in this case is ongoing  and there has not yet been a final ruling shielding providers from prosecution or guaranteeing a right to abortion in the state. We will continue to provide updates as the situation unfolds. 

• Wisconsin Republicans are threatening to try and remove recently elected Justice Janet Protasiewicz, if she declines to recuse herself from redistricting cases before the state’s Supreme Court. They claim that Justice Protasiewicz’s comments on the campaign trail about redistricting and abortion demonstrate that she will not adjudicate fairly. However, as the Associated Press reports, many former state justices have made public statements about issue areas, including gun rights, planned parenthood and lgbtq+ rights. In a state like Wisconsin, where state Supreme Court justices are elected, it is not uncommon for candidates to discuss specific subjects while campaigning. However, Justice Protasiewicz’s election gave the Wisconsin Supreme Court a 4-3 liberal majority for the first time in 15-years. The redistricting cases in question could disrupt Republicans’ stronghold on the state legislature. And, Justice Protasiewicz’s presence on the court drastically increases the likelihood of a favorable ruling on the state’s abortion laws. Generally, this section of the newsletter is dedicated to discussing changes in reproductive health law, and a segment like this would be saved for the section below covering other news in access. However, this developing story is of vital importance. It shows that the opposition is continuing to operate in bad faith, and that, when they lose in a free and fair election, they are willing to resort to other means to undo that loss. Removing a duly elected sitting justice for purely partisan reasons would be a stunning and disturbing disavowal of the democratic process by Wisconsin’s Republican party and it should unsettle onlookers on both sides of the aisle.

• Florida 

• Last week, the Florida Supreme Court heard oral arguments about the constitutionality of abortion restrictions in the state. Five of the seven current justices of the court were appointed by conservative anti-abortion Governor Ron DeSantis, and several of them have ties to the anti-abortion movement. The Florida Supreme Court previously ruled that the privacy clause in the state’s constitution extends to the decision to have an abortion. Advocates now argue that the state’s 15-week ban violates this previously recognized constitutional right. However, the state of Florida argues that the privacy clause was never intended to extend to reproductive rights, despite the court having previously found the exact opposite. At stake here is not just the currently operative 15-week ban, but also the 6-week ban that Governor DeSantis signed into law earlier this year. By the 6-week’s ban’s terms, it will go into effect 30 days after the Supreme Court issues a ruling finding that abortion is not constitutionally protected. Although it is likely to be a matter of months before the justices hand down a decision, the current makeup of the court leaves little reason to hope for a positive outcome. A negative ruling would knock out yet another access point in the already extremely restricted south, further limiting and delaying healthcare decisions. Pro-choice Floridians are already preparing for this outcome, in part by planning a campaign to get abortion access on the state’s ballot in 2024. 

• Alabama: 

• Alabama’s Attorney General appears to be standing behind his claim that Alabama can prosecute providers who refer pregnant people out of state for abortions. As a reminder, anti-choice advocates insisted when Roe fell that abortion should be handled by each state on its own terms, but in this case (as with other states), it is not enough for Alabama to regulate abortion within its own borders and under its own laws. The Republican AG now wants to penalize providers, and potentially family and friends, who assist Alabamians in accessing healthcare that is completely legal in another state. He appears to be arguing that, although it is legal for a pregnant person to get an abortion in another state, he can use state conspiracy laws to prosecute those who may help that person by providing assistance such as transportation, finances or information. The ACLU has filed a lawsuit challenging Alabama’s position. In it, they argue that Alabama law does not authorize such prosecutions and that it would “a blatant extraterritorial overreach of state power that not only contravenes the Due Process Clause, the First Amendment, and the fundamental constitutional right to travel, but also the most foundational principles of comity upon which our federalist system rests.” Alabama is not alone in its attempt to reach beyond its borders and regulate abortion. As we have reported on in the past, Idaho passed its own “abortion trafficking” law earlier this year. And, in Texas, where the abortion is also banned, some cities and counties have proposed ordinances that would make it illegal to use highways to transport people out of state for abortion. The architects behind this strategy are specifically targeting interstates and areas with access to airports, in an effort to hem in abortion seekers and force them to carry a pregnancy to term. 

More News in Access: 

• Data from Guttmacher shows how abortion numbers have increased or plummeted at the state-by-state level since Roe was overturned and patients have been forced to travel out of state or carry a pregnancy to term. 
  

• In building a post-Roe future, the reproductive rights movement faces important questions about how to frame the right to bodily autonomy. Advocates are grappling with whether to compromise for the sake of political moderation or use this moment as an opportunity to push for better, stronger and more comprehensive protections than were ever available under Roe. 
  

• On the 2-year anniversary of Texas’s infamous ‘SB8’ (the 6-week bounty hunter law passed before Dobbs), Ms. Magazine recalls its impact and the women who have suffered  under it. And, the harm is not just limited to the patients themselves; physicians are also suffering under a legal regime that criminalizes the ethical practice of their chosen profession.
  

• In a huge win for reproductive health advocates in Mexico, the country’s supreme court has decriminalized abortion, ruling that its continued criminalization constitutes violence and gender discrimination. 
  

• Idaho faces an impending maternal health crisis as the state’s draconian abortion laws cause doctors to leave the state and recruitment and retention of new providers to fall. A statement provided by Idaho Republican Representative John Vander Woude sheds light on how well thought out these anti-abortion laws are–he stated “[w]e never looked that close, and what exactly that bill said and how it was written and language that was in it…[w]e did that thinking Roe v. Wade was never going to get overturned.” 
  

• Against the wishes of many of his fellow Republican senators, Alabama Senator Tommy Tuberville continues to hold up more than 300 nonpolitical military promotions, in protest of the Pentagon’s policy of allowing time off and reimbursement for service members who need an abortion. 
  

• A district court out of Georgia has reversed course on gender affirming care, allowing the state’s ban to resume, after the 11th Circuit Court of Appeals–the federal appeals court over Alabama, Florida and Georgia–issued an adverse ruling in a case challenging Alabama’s ban. 
  

• Women in Idaho, Tennessee and Oklahoma have filed suit against their respective state’s abortion bans, recounting the deeply personal stories of how each state’s harsh and poorly written laws have placed their lives in jeopardy during pregnancy and forced their physicians to provide substandard medical care. These new lawsuits follow on the heels of the Texas lawsuit brought by women affected by the state’s total abortion ban.

REPRODUCTIVE HEALTH DIGEST (9/1/2023)

Developments in Abortion, Autonomy, and Access: 

Since L4GG’s last digest, two state supreme courts have ruled against abortion, allowing Indiana’s total abortion ban to go into effect and South Carolina to restrict access to approximately 6-weeks gestational age. A federal court out of West Virginia has dismissed a lawsuit relating to mifepristone, Ohio advocates continue to fight for a reproductive health ballot initiative, and debates about gender-affirming care and abortion continue in courtrooms and statehouses all over the country. Please read on for more detail.  

Legal Changes at the State Level: 

• Brief Overview: 

• Indiana: Abortion is now banned in Indiana, following the state Supreme Court’s denial of the ACLU and Planned Parenthood’s request for rehearing. The law contains narrow exceptions for the life or health of the pregnant person, lethal fetal anomalies detected prior to 20-weeks gestation, and circumstances of rape or incest prior to 10-weeks gestation. 

• South Carolina: On August 23, the South Carolina Supreme Court issued an order upholding the state’s renewed ‘fetal heartbeat’ ban, which restricts abortion to approximately 6-weeks gestational age. This ruling comes just months after the court struck down a nearly identical ban. 

• West Virginia: A U.S. District Judge out of West Virginia dismissed the majority of a case challenging West Virginia’s ban on mifepristone. The case was brought by GenBioPro Inc., the manufacturer of the generic version of mifepristone. They argue that the ban conflicts with federal regulation of the drug, which approves of its use for medication abortion. 

• Ohio: The saga over the proposed reproductive health constitutional amendment in Ohio continues this week, as advocates have been forced to file a lawsuit challenging the summary language approved by the ballot board. The phrasing of the summary is important, as this will be the language that voters see in the ballot box when they decide which way to vote. 

Legal Analysis: 

• Indiana: 

• Following the Indiana Supreme Court’s denial of the ACLU and Planned Parenthood’s request for rehearing, Indiana’s total abortion ban is now operative.. Although abortion has been functionally unavailable in the state since August 1st, when the law was initially set to go into effect, advocates had hoped that the court would grant their petition and put the ban on hold while further litigation over the ban’s constitutionality played out. Justice Christopher Goff dissented from the opinion, stating his concerns about the contours of the life and health exception and asserting that, “having declared the right of a woman to protect her life, [the] court should not now let that right go unprotected.” His concerns are consistent with the reality of how vaguely written life and health exceptions are playing out across the country. As a reminder, the Indiana ban prohibits abortion at all stages of gestation with narrow exceptions for 1) the health of the pregnant person; 2) lethal fetal anomaly if the gestational age is 20-weeks or less; and 3) rape or incest if the gestational age is 10-weeks or less. In a survey of the 8 major hospital systems in the state about whether they would provide abortions in cases of rape or incest, only 1 affirmed that they would perform the procedure; 3 (religious affiliated hospitals) stated that they would not provide such abortions, 2 did not respond to a request to comment, and 2 declined to comment. Indiana is the 15th state to fully ban abortion, with many others severely limiting access or attempting to ban it altogether. 
  

• South Carolina:

• South Carolina’s Supreme Court issued a ruling upholding the state’s renewed 6-week 'fetal heartbeat’ ban, narrowing abortion access in the state to a gestational age when many people do not yet know that they are pregnant. The order comes mere months after the state supreme court struck down a nearly identical 6-week ban on the grounds that it was unconstitutional. The court reasoned that, although the 2023 law infringes on a pregnant person’s “right of privacy and bodily autonomy,” those interests do not outweigh “the interest of the unborn child to live.” The South Carolina Supreme Court is all-male, after the Republican majority legislature replaced former Justice Kaye Hearn in February. Only Chief Justice Warren Beatty dissented from his colleagues, citing his concern that the way fetal cardiac activity is characterized in the bill is “medically and scientifically inaccurate” and is a “quintessential example of political gaslighting; attempting to manipulate public opinion and control the reproductive health decisions of women by distorting reality.” Despite conflicting arguments by the parties and medical ambiguity, the majority’s opinion failed to define “fetal heartbeat,” instead stating in a footnote of the order that it would leave that question for “another day.” Unfortunately, physicians who face devastating penalties if they are found to be in violation of the law do not have the luxury of operating in uncertainty until “another day” comes. Providers in the state have already reported that the vague law is having a chilling effect on the practice of reproductive health care, and this confusion and ambiguity is exactly what anti-abortion legislators are counting on. 

• West Virginia: 

• In West Virginia, a U.S. District Court Judge has dismissed the majority of a case challenging the state’s ban on mifepristone. The plaintiff in the case, GenBioPro Inc., the manufacturer of the generic version of mifepristone, argues that the state’s prohibition conflicts with federal regulation and approval of the drug for use in medication abortions. In his ruling, Judge Chambers stated that SCOTUS “has made it clear that regulating abortion is a matter of health and safety upon which States may appropriately exercise their police power.” Although Judge Chambers dismissed the majority of the suit, he allowed GenBioPro’s challenge to West Virginia’s ban on the use of telemedicine for abortion to survive, finding that it was in conflict with federal law. However, due to the severe restrictions on abortion availability in the state, the benefit of that ruling is limited. Interestingly, although he granted dismissal, Judge Chambers’ opinion is unambiguous in its appraisal of the safety of mifepristone. In his ruling, he states that “Defendants have not disputed the safety of the mifepristone REMS, nor could they,” and explains that, with respect the Fifth Circuit case challenging the FDA’s approval of mifepristone, the court “has reviewed the Fifth Circuit decision and does not find its primary determinations to be persuasive.” 

• Ohio: 

• In Ohio, advocates supporting the reproductive health ballot initiative that will be before voters in November have been forced to file another lawsuit, this time challenging the summary language approved by the ballot board. The summary language will be what voters actually read in the ballot box when they decide whether to vote for or against the amendment, so the manipulation of the language is just one more opportunity for anti-abortion Republicans to attempt to deceive and coerce voters. The summary language diverges from the actual proposed amendment in a number of material ways. First, although the amendment would protect a whole spectrum of reproductive decisions including contraception, fertility treatments, miscarriage care, and continuing one’s pregnancy, the approved summary only mentions abortion by name. Further, the clause in the proposed amendment that explains that the state shall not interfere with the right to pre-viability abortion has been changed to read that the “citizens of the state of Ohio” may not interfere with that right. This change in language is blatantly deceptive, as it is the state itself that would be prohibited from passing laws infringing on the rights of pregnant people, not Ohio citizens. The summary additionally changes the phrase “pregnant patient” to “pregnant woman,” and the medical term “fetus” is changed to “unborn child.” None of these changes actually provide clarity about the content of the amendment for the voters who will decide on its passage; instead, they muddy the waters and replace accurate language with politically coercive and misleading phrasing. Although we have said it before, it bears repeating yet again that if Ohio Republicans are so sure that their constituents do not support abortion–why not just let them vote on it in a fair and clear election? 

More News in Access: 

• Virginia Governor Glenn Youngkin is considering a 15-week abortion ban as the state gets closer to its November legislative election. If Virginia Republicans manage to flip the Senate and hang on to their current majority in the House, the Governor will be emboldened to advance a more conservative agenda. This could be devastating for abortion in the South, where Virginia is one of the only remaining strongholds of access. 

• In Alliance for Hippocratic Medicine v. FDA, Fifth Circuit Judge Ho has been criticized for arguing that the plaintiffs have standing to challenge the FDA’s approval of mifepristone because, similar to environmentalists who suffer harm from governmental actions that threaten an animal’s habitat, “[u]nborn babies are a source of profound joy for those who view them,” and “[d]octors…experience an aesthetic injury when they are aborted.” 

• In Texas, a state district court judge granted an injunction pausing the state’s ban on gender-affirming care for minors. The state appealed that ruling, and on Thursday, the Texas Supreme Court lifted the injunction, allowing the ban to go into effect during the pendency of litigation. 

• New Mexico’s Supreme Court has agreed to hear oral arguments on whether local abortion bans enacted by counties and cities across the state are a violation of state law, which protects the right to abortion. 

• Kentucky’s gubernatorial race will be a crucial determinant of future abortion access in the state. 

• In another win for gender-affirming care, a federal judge in Georgia has issued an injunction temporarily halting enforcement of the state’s ban on gender-affirming care for minors. This ruling is already under fire, after the Eleventh Circuit issued an adverse ruling in a federal case relating to Alabama. 

• In Nebraska, abortion groups have begun a push for a 2024 ballot initiative protecting abortion. 

• Missouri’s gender-affirming care ban is now in effect, following a judge’s denial of a legal challenge to the law. 

• Anti-abortion activists, including one who was found to be storing fetal remains in her D.C. home, have been convicted under the Freedom of Access to Clinic Entrances Act for blockading a D.C. abortion clinic for over three hours, disrupting care, and causing harm. They will face sentencing later this year.

Issue of the Week: Healthcare Amendments and Abortion Access

This week’s “Issue of the Week” is a continuation of our series focusing on the different strategies being used to protect reproductive freedom. This week’s installment has been guest written by L4GG intern Veronica Dickstein.

A post-Dobbs world has forced abortion advocates to be creative about the strategies used to combat restrictive abortion bans. While a previous blog post featured religious freedom challenges to abortion bans, this post will focus on state-level healthcare-related constitutional amendments and how they are being used to protect abortion.

After the Affordable Care Act (ACA) was passed by the Obama administration, Wyoming, Ohio, Alabama, Arizona, and Oklahoma all amended their constitutions in an effort to circumvent the ACA’s individual coverage mandate. Generally, these state constitutional amendments assert that citizens of the state have a right to make healthcare decisions for themselves. For example, Ohio’s 2011 Healthcare Care Freedom Amendment states that “no federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.” Alabama’s Amendment 864, Article 27, Section 2 of the Arizona Constitution, and Oklahoma’s 2010 Healthcare Freedom Amendment each state exactly the same.

Although the language in these amendments was not intended to protect abortion, their broad character leaves room for pro-choice arguments. Pro-choice advocates in Wyoming and Ohio argue that they protect a citizen’s right to make healthcare decisions without governmental intrusion, including the decision to have an abortion. Conversely, defendants respond that, because these amendments do not completely prevent the government from regulating healthcare, prohibitions and limitations on abortion remain constitutional.

In Johnson v. State of Wyoming, the plaintiffs challenge the state’s total abortion ban under Wyoming’s healthcare amendments and state constitutional guarantees of equality, due process, equal protection, bodily autonomy, and privacy. A related argument was used by Wyoming judge Melissa Owens earlier this summer to at least temporarily block proposed legislation that would ban abortion pills in the state. Similarly, advocates in Preterm-Cleveland v. Yost rely on the Ohio Healthcare Care Freedom Amendment and state constitutional protections for equal protection, individual liberty and privacy to challenge Ohio’s attempted fetal heartbeat ban. In August 2022, Wyoming’s Supreme Court granted a preliminary injunction, temporarily blocking the state’s ban from implementation, and in October 2022, Ohio’s First District Court of Appeals issued a preliminary injunction in Preterm-Cleveland v. Yost. In both of these decisions granting preliminary injunctive relief, the courts expressed concern about the vagueness of the bans, saying it was unclear how health-related exceptions would be applied to medical decision-making – a concern that is echoed for abortion bans across the country. Vague non-medical language harms the provider’s ability to effectively exercise their expert judgment, developed through years of education and training, in determining the appropriate course of treatment. This restricts or delays patient access to high-standard care, harming health outcomes and impeding on the right to make healthcare decisions for oneself in violation of Ohio and Wyoming’s state constitutions. And, the invocation of 14th Amendment-esque protections as a supporting cast in cases that focus on the right to make healthcare decisions demonstrates the inherent interconnection between healthcare and questions of bodily autonomy, privacy, and freedom from governmental intrusion. 

Although the outcomes of these cases are not yet known, the strategy of using healthcare amendments to fight for abortion access is an extremely important one to watch, particularly in states that are traditionally hostile to abortion. These healthcare amendments are a potentially highly effective tool for protecting abortion access. They were originally enacted to promote a conservative agenda by stifling the effectiveness of the ACA, and their use for this purpose is both creative and a little ironic. As the ACA has “indisputably improved [health insurance coverage],” historically, efforts like these amendments to undermine it have not improved equality or medical care in America. Maybe now, through these cases, these amendments can find new life and efficacy in the reproductive rights arena, saving thousands of American lives.

REPRODUCTIVE HEALTH DIGEST (8/18/23)

Developments in Abortion, Autonomy, and Access: 

In the past two weeks, the Fifth Circuit’s ruling in the mifepristone case dropped, Ohio held its vote on Issue 1, and litigation and legislation around the country saw movement in both positive and negative directions. Please read on for more information. 

Legal Changes at the State Level: 

• Brief Overview: 

• AHM v. FDA (mifepristone): The Fifth Circuit has ruled in Alliance for Hippocratic Medicine v. FDA, the case challenging the FDA’s 2000 approval of mifepristone for use in medication abortion. The conservative 3-judge panel’s Opinion upheld restrictions on access to the drug, but declined to pull it from the market entirely. Please note: Despite this ruling, there will be no changes to the drug’s availability during the pendency of the litigation, as a result of a previously issued Supreme Court Order. 
  

• Ohio: In Ohio, the Issue 1 vote to raise the threshold for a constitutional amendment from a simple majority to 60% has failed. This has huge implications for the proposed constitutional amendment to protect abortion that will appear on the November ballot. 

• Idaho: Educators in Idaho have filed a lawsuit challenging the state’s “No Public Funds for Abortion Act” as a violation of their First and Fourteenth Amendment rights. 

• Nebraska: In Nebraska, a judge has ruled in favor of the state’s combined 12-week abortion ban and gender affirming care ban. 

Legal Analysis: 

• AHM v. FDA (mifepristone): 

• On Wednesday afternoon, the Fifth Circuit issued its much anticipated Opinion in Alliance for Hippocratic Medicine v. FDA. In the 93 page order, the 3-judge panel ruled to restrict access to the drug, but declined to pull it from the market entirely. As a reminder, this case was brought by anti-abortion physicians and physician groups challenging the FDA’s 2000 approval of mifepristone for use in medication abortions. Relying on scientifically dubious studies, the Plaintiffs argue that mifepristone is not sufficiently safe and that the FDA erred in approving the drug in 2000 and later modifying its regulations for use in ways that increased access. In April, Trump-appointee Judge Matthew Kascmaryk sided with the Plaintiffs and ordered the pill to be removed from the market; however, the Supreme Court issued an order in April blocking Judge Kascmaryk’s ruling from going into effect until the litigation reaches its final conclusion. Wednesday’s Order reverses Judge Kascmaryk’s ruling on the FDA’s 2000 approval of mifepristone, finding that the Plaintiffs are outside of the statute of limitations. But, it maintained restrictions on the drug’s use, including limiting its use to 7 weeks (though it is currently approved through 10-weeks), and requiring it to be prescribed in person, rather than allowing for  telemedicine. The Fifth Circuit’s opinion is out of step with major health organizations worldwide, which approve of the safety of telemedicine for prescribing mifepristone. If the ruling holds, it would devastate clinic capacity and patient access to care, as overwhelmed clinics rely heavily on the availability of telemedicine to serve the surge of patients traveling from ban states to receive care. The Court’s finding that the Plaintiffs have standing to bring their challenge is also a stunning departure from accepted standing jurisprudence and could have precedential consequences in countless other cases. The panel found that the doctor’s have standing to challenge the FDA’s approval of mifepristone, because they may someday have to participate in abortion care if a patient who took mifepristone presents in their E.R. or clinic–despite the fact that federal law protects the doctors’ right to assert conscience objections in circumstances where providing certain care is against their moral beliefs. In his concurring opinion, Judge Ho suggested that, in addition to the injuries asserted, the plaintiff’s also have an “aesthetic injury.” Judge Ho analogized this case to cases involving wildlife preservation and offered the following reasoning: 

"its well established that, if a plaintiff has ‘concrete plans’ to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal ....[u]nborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and families cheer at the sight of an unborn child. Doctors delight in working with their unborn patients--and experience an aesthetic injury when they are aborted."

The case is all but guaranteed to make its way back up to the Supreme Court, although when the Court would take up the case, and on what question, is uncertain. Crucially, access to mifepristone remains unchanged at this time, as a result of the Supreme Court’s April Order.  

• Ohio:

• In other much-anticipated news,  Ohio Issue 1, the special election issue to determine whether to raise the threshold to pass a constitutional amendment from a simple majority to 60% has failed. This has huge potential implications for abortion in the state, as a ballot initiative protecting certain abortions will be directly before voters in November. The success or failure of the Ohio ballot initiative will serve as a model for advocates on both sides of the abortion fight in other states around the country.

If the proposed amendment passes, it would effectively codify the Roe standard in Ohio by providing a fundamental right to abortion pre-viability and allowing the state to enact restrictions post-viability. Although the outcome of the November election is far from a foregone conclusion, reproductive rights have succeeded all six times that they appeared on a state ballot in 2022. 

• Idaho: 

• Educators in Idaho have filed a federal lawsuit challenging the state’s “No Public Funds for Abortion Act” (NPFAA) as a violation of their First and Fourteenth Amendment rights. The NPFAA prohibits the use of public funds, including those used to fund Idaho public universities, to “promote” or “counsel in favor” of abortion. In their Complaint, six Idaho professors and two teachers’ unions argue that the law, which does not provide a definition for “promote'' or “counsel in favor of” is unconstitutionally vague and criminalizes academic speech that could be construed as expressing a viewpoint favorable to reproductive rights. The Plaintiffs argue that they are forced to either alter their lesson plans, or risk the state enforcing the NPFAA against them, with prison time up to 14 years as a potential consequence. In the complaint, the plaintiffs describe the chilling effect that the law has already had on free academic discourse. For example, a philosophy professor has stripped a module about human reproduction from the curriculum, because it would typically include materials presenting viewpoints on both sides of the abortion issue and could lead to a classroom discussion about the merits of reproductive freedom. A political science professor ceased giving a lecture about public opinion on abortion across the states for fear that it could run afoul of the law. Another professor scrubbed reference to their research on reproductive freedom from their online profile. The Complaint details several other concrete examples of how the law is impacting academic freedom. The state has issued no guidance or reassurance on how the law would be applied to academics. The NPFAA’s potential application to academic discussion underscores how the fight for bodily autonomy is inextricably linked to the fight for a free and open society. We cannot have one without the other.  

• Nebraska: 

• In a Nebraska lawsuit, a judge has ruled in favor of the state’s combined 12-week abortion ban and ban on gender affirming care for minors. As we have previously reported on, after failing to enact other abortion bans, the Nebraska legislature tacked a 12-week abortion ban onto a preexisting bill banning gender affirming care for minors. The combined law was pushed through at the last second in the state’s 2023 legislative session. Planned Parenthood and the ACLU challenged the law, arguing that it violated the state constitutional requirement that bills only contain one subject. The Court sided with the state, finding that the subjects were appropriately contained in one bill, because they both relate to health. Planned Parenthood and the ACLU have indicated their intent to appeal the order; however, for the time being, Nebraska’s law remains effective and abortion is severely limited in the state. 

More News in Access: 

• A Texas prison guard who experienced a stillbirth after being forced to stay at her post while 7-months pregnant and experiencing labor pains is suing the state of Texas. Texas is fighting the suit, arguing in part that her fetus did not have personhood rights. This is a significant departure from Texas’s decades-long insistence that a fetus should be recognized as a person from the time of fertilization. 

• Maine recently amended its abortion law to grant providers greater discretion in using their medical judgment to determine when an abortion is necessary. Opponents of this move will not attempt to nullify it via a constitutional referendum. 

• Arizona abortion advocates have begun a push for a 2024 ballot initiative that, if successful, would put the question of whether to constitutionally protect abortion directly before voters next year. 

• An anti-choice student group, Students for Life of America,  continues to challenge mifepristone access under the Clean Water Act, circulating a petition that calls for an assessment of the drug’s impact on the country’s recreational water sources. SFLA President Kristan Hawkins stated the following in support of SFLA’s position: “[t]oday, more than half of all abortions–says the abortion industry–are committed with pills, meaning that all of that tissue and human remains goes into our water supply[;] [s]ome ingredients of the pill in the Chemical Abortion Pill protocol continue to be active after leaving a woman’s body. What is that doing to fish, animals, endangered species, plans and even human beings?” 

• In Georgia, supportive parents are fighting to block the state’s ban on gender affirming care for minors, arguing that the law is unconstitutional and supersedes their ability to make medical decisions on behalf of their children. 

• In Idaho, a federal judge has temporarily blocked legislation requiring public school students to use the bathroom that corresponds with the sex they were assigned at birth. 

• Texas is seeking more than $1.8 billion in reimbursements from Planned Parenthood. The lawsuit moved forward this week with a hearing in front of Judge Matthew Kascmaryk, the judge who ruled against the FDA’s approval of mifepristone earlier this year. 

• In Montana, the Attorney General made comments during an interview suggesting that Planned Parenthood has covered up instances of human trafficking.

• North Carolina lawmakers have voted to override Governor Roy Cooper’s veto on the state’s ban on gender affirming care, allowing the ban to pass into law. 

Issue of the Week: State Constitutional Amendments 

This week’s “Issue of the Week” is a continuation of our series focusing on the different strategies being used to protect reproductive freedom. This week’s installment has been guest written by L4GG intern Kieran Malik. 

It has been barely a year since the Supreme Court’s decision in Dobbs, and our country is facing a landscape more hostile to reproductive healthcare than we have seen in decades. This is a time of profound crisis for millions of Americans, but it also offers an opportunity for us to reimagine reproductive rights law and create something far more protective, comprehensive, equitable and lasting than Roe ever was. 

There are a variety of state-level legal strategies being pioneered in defense of reproductive freedom. One of these is the enshrining of  reproductive rights into state constitutions. Below are some examples of how this tactic is being employed by activists across the country and how it can be effective:

ERA approach: 

Originally passed by Congress in 1972, the Equal Rights Amendment (“ERA”) was an attempt to establish sex equality under the law in the US Constitution. While opponents of the women’s liberation movement prevented the amendment from being ratified by the states before the deadline, reproductive rights activists are reviving the ERA as a strategy for protecting bodily autonomy at the state-by-state level. State level ERA’s can provide a legal hook for arguments that abortion is constitutionally protected. A lawsuit filed by a reproductive health center in Pennsylvania argues that the state’s failure to provide Medicaid coverage of abortion is a form of sex discrimination that violates the state’s equal rights amendment. If successful, the suit will serve as an example for the defense of bodily autonomy in as many as 24 states with ERAs. This past January, the New York legislature passed an equal rights amendment that will appear on the ballot for ratification in November 2024. The ERA broadly defines sex discrimination as encompassing “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy” – explicitly protecting both reproductive rights and trans rights as an integral part of sexual equality. 

Reproductive Rights Amendments: 

After the devastating decision in Dobbs, many states are going a step further and working to establish constitutional amendments directly and explicitly protecting reproductive rights alone . These protections tend to be more comprehensive than those provided under pre-Dobbs law. For example, in 2022, Vermont and California passed ballot measures protecting abortion without any reference to viability, a limit to reproductive freedom imposed under Roe. As discussed in the last digest, although state legislatures commonly refer to viability and define it as a fixed moment in fetal development, medical professionals assert that fetal viability is a complex concept that cannot be determined by gestational age alone. The American College of Obstetricians and Gynecologists “strongly discourages the use of viability in legislation or regulation.” A state-by-state approach to reproductive freedom legislation provides an avenue to avoid such misuse of medical concepts by politicians at the federal level. 

However, in other states it has proven more difficult to defeat the ideological warping of medicine in the law. Michigan’s 2022 constitutional amendment and Florida’s proposed amendment for 2024 only protect the right to abortion before viability (Florida’s law clarifies that such an amendment would not threaten parental notification). While legislation that makes such concessions can provide much-needed healthcare rights to millions of Americans, they fall short of achieving true reproductive freedom. When dealing with law as powerful and lasting as state constitutional amendments, we must be sure that it provides access to all people who need it, and that it lays a proper foundation for future policies.  

Expanding Access, Not Just Rights: 

Roe may have provided temporary and limited protection from infringement upon one’s bodily autonomy, but it failed to engage with or create the resources necessary to ensure equity in reproductive healthcare access. The Hyde Amendment still prevents Medicaid coverage for abortion in many states, leaving the most disadvantaged Americans without access the full range of their reproductive choices. In the fight for new legal protections, we have the opportunity to not just defend reproductive healthcare access, but to expand it and reimagine what reproductive freedom looks like. For example, in May, Rhode Island passed the Equality in Abortion Coverage Act, which provides abortion coverage under Medicaid and state insurance. It joins 16 states that have rejected the Hyde Amendment in order to provide reproductive healthcare for all their citizens. 

Protect Our Future: 

This June, the Supreme Court ruled in Moore v. Harper that powers granted to the states by the federal government must be exercised in accordance with state supreme court decisions and constitutions. As such, a state-by-state constitutional amendment strategy can be an incredibly powerful defense of reproductive rights. When written comprehensively, these amendments can protect our rights now and provide a powerful defense against any future state-level attacks that may be leveled against them.

As early as November, Americans across the country will have the opportunity to enshrine reproductive rights in their state constitutions. These amendments have the potential to significantly strengthen existing protections, or reverse devastating restrictions on reproductive healthcare. But more than that, they have the power – we have the power – to expand reproductive healthcare access more than ever before, and protect our bodily autonomy for generations to come.

REPRODUCTIVE HEALTH DIGEST (8/4/23)

*Note: An urgent update was also sent on August 7th due to important developments in abortion law that came out of Illinois and Texas. This update is here:

Illinois: 

• As we reported in last week’s digest, Illinois recently passed legislation expanding its existing consumer fraud protections to allow civil actions against Crisis Pregnancy Centers (CPCs) that are found to have engaged in deceptive and dishonest business practices. The new law was immediately challenged on First Amendment grounds by anti-choice groups claiming that it discriminates against their pro-life viewpoint. Late on Thursday, August 3rd, a Trump-appointed federal judge issued an oral order granting a preliminary injunction temporarily blocking the new law from taking effect. Illinois Governor JB Pritzker defended the law on Friday, stating “I’m confident this is constitutional. It's legal. Remember what they're doing. They're putting their crisis pregnancy centers next door to abortion rights centers, and they're directing people to go in their front door or telling them things that aren't true, often.” 
  

Texas: 

• A Texas state district judge issued a ruling on Friday, August 4th, temporarily enjoining enforcement of the state’s total abortion ban in cases where physicians used their “good faith judgment” to end a pregnancy because of serious complications or risk to the pregnant person. The case was brought by a group of women who were denied abortions despite serious risks to their health or diagnoses that their pregnancies were no longer viable, and it is believed to be the first case brought directly by patients denied abortion care. The Texas Attorney General’s office immediately filed an appeal against the ruling, blocking it from taking effect. The outcome of this litigation will inform strategies used in other cases that seek to challenge harsh and poorly written abortion bans across the country.

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8/4 - Developments in Abortion, Autonomy, and Access: 

The legal landscape for abortion and bodily autonomy continues to change rapidly from week to week as litigation unfolds, legislatures debate and advocates organize to push back. Please read on for a discussion of the latest updates:

Legal Changes at the State Level: 

• Brief Overview: 

• Indiana: Indiana’s total abortion ban was set to go into effect on Tuesday, August 1st. However, the ACLU filed a petition with the state supreme court late Monday evening, asking the court to keep the ban on hold while it considers challenges to law. Although this move has temporarily delayed implementation of the ban, it seems that all Indiana abortion clinics have ceased offering abortion care in the interim.

• Maine: Maine passed changes to the state’s abortion law that expand access to care and place greater medical decision making authority in the hands of providers.

• Alabama: A group of Alabama health care providers have filed suit in federal court in response to Alabama Attorney General Steve Marshall’s threats to prosecute individuals who assist pregnant people over state lines to obtain legal abortions. This lawsuit comes on the heels of a similar interstate travel-based challenge in Idaho, to that state’s “abortion trafficking” law.

• Ohio: As we have reported on in previous issues of this digest, Ohioans are fighting to get abortion protections on the state’s November ballot. Last week, the Ohio Secretary of State certified that advocates have obtained enough valid signatures for the ballot initiative to move forward, taking them one step closer to a vote. However, Ohio Republicans continue to attempt to block the ballot measure–this time with a new lawsuit challenging its compliance with statutory requirements. 

• Illinois: Illinois has joined other states in passing legislation aimed at deterring “crisis pregnancy centers” from engaging in deceptive and misleading practices. The Illinois law is being challenged on First Amendment grounds by groups advocating for the value of CPCs. 
  
  

Deeper Legal Analysis 

• Indiana: 

  • Indiana’s total abortion ban was set to go into effect on Tuesday, August 1st. However, late Monday evening, the ACLU filed a petition with the state supreme court, asking it to keep the law on hold while it pursues a narrower preliminary injunction at the trial court level. This move has temporarily delayed implementation of the ban, while the court considers the filing. However, Indiana’s six abortion clinics have all ceased offering abortion services in anticipation of the ban becoming operative,, devastating access for pregnant people in the state. As a reminder, Indiana’s law bans abortion at all stages of pregnancy. It limits where abortions may take place to hospitals and ambulatory surgical centers, despite the demonstrated safety of abortions performed in a clinic setting. It provides only narrow exceptions for instances of rape or incest until 10 weeks in pregnancy and for fatal fetal anomaly until 20 weeks. Although the law was subject to immediate challenge upon passage, the state supreme court ruled that the ban did not violate the Indiana constitution. Advocates now face an uphill battle in renewing their legal opposition to the law.  
    
    

• Maine:

• In Maine, Democratic Governor Janet Mills has signed a new bill into law that expands access to abortion in the state and defers to the expert judgment of providers. The previous law banned abortions after fetal viability, but it made an exception for circumstances where the patient’s life is in danger. Under the new law, a post-viability abortion is permissible if it is deemed necessary in the professional judgment of the physician. This makes Maine’s new law one of the most expansive in the country, and it does the crucial work of putting expert decision making authority into the hands of the medical professionals rather than legislators. In support of the amended law, Governor Mills cited the case of a Maine woman who was forced to travel to Colorado for an abortion at 32 weeks after discovering that her fetus had a deadly form of skeletal dysplasia. Under Maine’s previous law, she was unable to obtain care in her home state despite the devastating fetal diagnosis. Cases like this highlight the problem with laws that fail to engage with the complex realities of pregnancy and the need for physician’s to be able to exercise their expert judgment in concert with a patient’s wishes. 
  

• Ohio:

• As we have discussed in previous issues of this digest, Ohio is locked in an ongoing battle over whether a constitutional amendment protecting certain abortions will be on the November ballot. Last week, the Ohio Secretary of State certified that advocates have obtained enough valid signatures to satisfy requirements for a ballot initiative, taking them one step closer to a vote. However, Ohio Republicans continue to attempt to block the ballot measure–this time with a new lawsuit challenging its compliance with statutory requirements. As groups on both sides continue to fight over the ballot initiative, it is worth taking a moment to recall all of the steps that Republicans in the state have taken to attempt to stop it from advancing to a direct vote in November. 

• At the outset, Republicans brought a baseless legal challenge arguing that the ballot initiative should have been split into two separate issues: one for abortion and a second for all other reproductive healthcare. Had this argument succeeded, proponents of the initiative would have been forced to go back to the drawing board and collect twice as many signatures as they had planned for. The state Supreme Court struck down this argument, unanimously finding that the issues were properly contained within one initiative. Republicans then successfully set an August special election to determine whether to raise the threshold for passing any state constitutional amendment from a simple majority to 60%. Ohio Secretary of State Frank LaRose has admitted that this election is entirely about keeping abortion off of the ballot. In addition to the August special election, Ohio Republicans have now filed another lawsuit, primarily arguing that the petition proposal did not satisfy statutory requirements. The Ohio Supreme Court has set a deadline of August 7th to receive documentation from each of the parties. 

  The entire fight over this ballot initiative shines a light on ways in which direct democracy can be subverted by special interests. It also begs the question–if Republicans are so certain that Ohioans don’t support abortion, then why not simply let them vote on it?
  
  

• Alabama: 

• A group of Alabama health care providers have filed suit in federal court, challenging Attorney General Steve Marshall’s threats to prosecute individuals who help Pregnant Alabamians over state lines to obtain an abortion. The Complaint argues that the Attorney General’s threatened actions are a violation of due process, the First Amendment, and the fundamental right to travel. It also places the challenge in the context of Alabama’s high maternal mortality rate and the reality that women of color are disproportionately impacted by a lack of access to healthcare. This lawsuit comes on the heels of the challenge in Idaho to the state’s “abortion trafficking” law.  In the Idaho case, A federal judge has just issued a temporary injunction blocking Idaho Attorney General Raul Labrador from prosecuting providers for referring patients out of state for abortion care. With the erosion of Roe’s legal reasoning, the landscape of legal arguments for preserving access to abortion is changing. Arguments for access are now turning on concepts like the right to travel, freedom of expression and even religious freedom. Many of these legal theories are as yet untested in an abortion context, and the litigation that unfolds in the coming months and years will inform the strategies used by the next generation of advocates. 
  

• Illinois:

  • Illinois has joined the ranks of states passing legislation aimed at deterring “Crisis Pregnancy Centers” from engaging in deceptive and misleading practices in order to achieve their goal of dissuading pregnant people from accessing abortion care. Crisis Pregnancy Centers, commonly referred to as CPCs, are certain facilities that represent themselves as health care clinics in name, appearance and advertising, in order to attract pregnant people and dissuade them from seeking abortion care. As ACOG explains, “[s]taff members at these unregulated and often nonmedical facilities have no legal obligation to provide pregnant people with accurate information and are not subject to HIPAA or required by law to maintain client confidentiality” and many “are affiliated with national organizations that provide funding, support and training to advance a broadscale antiabortion agenda.” CPCs often use deceptive wording on their websites about abortion so that they appear in search results for abortion care. They also spread disinformation about the risks of abortion including advancing an “abortion as trauma” model, making false statements that abortion increases the risk of certain diseases such as breast cancer, and pushing the medically unsubstantiated claim that medication abortion can be reversed. These centers utilize manipulative and coercive tactics to prey on pregnant people who are seeking legitimate information and medical care in order to advance their anti-choice agenda. 

  • In response to the proliferation of CPCs, states like Illinois have passed legislation aimed at deterring the centers from lying to the public. The new Illinois law is an expansion of the state’s existing consumer fraud protections; it subjects these centers to civil liability and penalties if they are found to be in violation of the law. Shortly after the bill was passed, anti-abortion groups challenged it as a violation of their First Amendment Rights, arguing that it penalizes them for their pro-life viewpoint. Illinois Attorney General Kwame Raoul responded by asserting that he is confident that the law will withstand legal challenge, as nothing in the First Amendment permits entities to lie to the public. Late on Thursday, August 3rd, a Trump-appointed federal judge issued an oral order granting a preliminary injunction temporarily blocking the new law from taking effect.

What else is happening in access? 

• The political fight over medication abortion has now reached the first health-related spending bill to pass through the House this year. Lawmakers are at odds over a proposed rider that would alter the FDA’s current policy of allowing mifepristone, one of two common medication abortion drugs, to be sent via the mail and dispensed at pharmacies. 

• Iowa has filed an appeal challenging a state district court’s grant of a preliminary injunction blocking implementation of the state’s 6-week ‘fetal heartbeat’ abortion ban. 

• Arkansas is appealing a federal court’s decision striking down the state’s gender affirming care ban. The appeal was anticipated and the case will now go up to the Eighth Circuit Court of Appeals. 

• In Florida, advocates are advancing their efforts to get abortion on the 2024 ballot, although they are aware that the state Supreme Court has the power to strike the proposed initiative if they determine that it is not sufficiently clear. Republicans are highly motivated to keep these ballot initiatives away from voters, as every time abortion has been on a state ballot post-Dobbs, it has uniformly won. 

• Two transgender patients are suing Vanderbilt for sharing their health records with the Tennessee Attorney General, citing the AG’s hostility towards gender affirming care in the state and the state’s harsh gender affirming care ban. 

• You can read the detailed account of how two teen parents who were unable to obtain an abortion because of Texas’s laws are navigating life as young parents to twins two years after the fact. 

• A new study sheds light on shifting public opinions about when in pregnancy abortion should be legally permissible, showing a trend towards opposition to any government intervention into medical decision making.
  

Issue of the Week: The problem with the viability standard 

This week, we are going to take a break from our series on ways that advocates are pushing back against abortion bans to discuss an important and unavoidable subject in the ongoing conversation about abortion policy: the viability standard. 

If  you follow reproductive rights policy at all, there are few phrases that you will hear thrown around with greater frequency than “fetal viability.” In addition to the trimester framework, fetal viability has become an accepted way to frame conversations about appropriate abortion policy. But here's the thing: fetal viability is a medical concept, not a legal, ethical or moral one. Although “viability” as a medical term exists in its own right, fetal viability as a legal standard was created, not by experts in the medical field, but by a Supreme Court clerk at the time of Roe’s consideration. And, in the decades since Roe, the concept of viability as an acceptable legal demarcation has gone relatively unchallenged. Post-Dobbs, many states continue to use it as a guiding standard. For example, the Ohio ballot initiative discussed above would permit lawmakers to restrict abortion after fetal viability, as the proposed initiative defines it. Although mixing ideology with medicine has become standard practice in the politics of abortion, the treatment of viability as a fixed moment in gestation can lead to legislation that is medically inaccurate and out of alignment with the realities of pregnancy. It also fails to account for the many reasons why people may need abortions later in pregnancy. 

Fetal viability is generally defined as the point at which a fetus can sustain survival outside the uterus; this commonly occurs somewhere between 24 and 28 weeks LMP. Although the vast majority of abortions occur during the first trimester (around 93%), and less than 1% occur after 21 weeks gestation, pregnancy is exceedingly complex and abortions later in pregnancy can become necessary for any number of reasons. Legislation that relies on gestational age to define viability and declare when abortion is permissible fails to engage with these complexities. As ACOG explains, “[f]etal viability depends on many complex factors, of which gestational age is only one[,]” and while “gestational age may be helpful in predicting the possible chance that the fetus would survive at time of delivery, many other factors also influence viability, such as sex, genetics, weight, circumstances around delivery, and availability of a neonatal intensivist health care professional.” Even taking all of these factors into consideration, it is still not possible to predict survival with absolute certainty or to predict quality of life if survival is feasible. Fetal viability is not a simple calculation based on gestational age. Although health care providers are able to use a variety of tests and methodologies to assess fetal development, there is not a definitive way to diagnose viability, and making that determination often comes down to clinical judgment and case-specific factors. Clinicians should be able to use their expertise to make those judgments, without the law drawing bright lines that don’t account for a particular patient’s medical circumstances. This kind of harsh line-drawing is especially inappropriate when the law seeks to attach civil, criminal and professional penalties to providers who are found to be in violation. 
Abortion later in pregnancy is heavily politicized, with politicians and anti-abortion groups describing it in terms that simply do not comport with reality (for example, former President Trump’s statements about “ripping babies straight from the mother’s womb”). However, the reality is that abortion later in pregnancy, like all abortion, is a matter of health care. Regardless of any individual’s personal views on the morality of abortion, patients are best served when they are able to make decisions in consultation with a trusted expert provider who knows the facts of their case. Legislation that interferes with that relationship harms that standard of care, erodes provider-patient trust, and inevitably paves the way for worsened health care outcomes.

REPRODUCTIVE HEALTH DIGEST (7/21/23)

Developments in Abortion, Autonomy, and Access: 

In the past two weeks, legal changes to abortion, autonomy and health care access have unfolded at both the state and federal level. These developments include the passage of Iowa’s new 6-week abortion ban, the FDA’s approval of an over the counter birth control pill, and ongoing legal battles over the right to gender-affirming care. This week’s digest also has a great deal to report in its “more news in access” section, as concrete changes to the law slow down with the close of state legislative sessions but litigation and policy efforts continue. With today’s digest, we are also kicking off an “issue of the week” series highlighting strategies that are being used to push back against abortion bans, with our first post being guest-written by L4GG intern Veronica Dickstein.

Please read on for more detail and discussion.

Legal Changes at the State Level: 

• Brief Overview: 

• Iowa: In a single-day special legislative session called for the “sole purpose” of passing anti-abortion restrictions, Iowa pushed through a renewed 6-week abortion ban. The ban was immediately subject to legal challenge, and although it briefly took effect, a judge issued a temporary injunction halting its enforcement on Monday, July 17.

• Connecticut: Connecticut Governor Ned Lamont has signed additional protections for reproductive health care into law, protecting both providers and patients.

• Idaho: Groups have filed a lawsuit challenging Idaho’s abortion trafficking law, arguing that it violates their right to interstate travel, as well as their First Amendment rights to speak and engage in expressive conduct.

• FDA: On the federal level, the FDA has approved an over-the-counter birth control pill for the first time.
  

Deeper Legal Analysis 

• Iowa: 

  • In a single-day special legislative session called for the “sole purpose” of passing anti-abortion restrictions, Iowa pushed through a renewed 6-week abortion ban, despite polling that clearly reflects Iowans’ support for abortion rights.  The ban was immediately subject to legal challenge. Although it briefly took effect, a judge issued a temporary injunction halting its enforcement on Monday July 17, preserving access to abortion until 20 weeks gestational age for the time being. The bill  bans abortions after the sixth week of pregnancy, based on the detection of a “fetal heartbeat.” It is nearly identical to a 2018 law that the state Supreme Court has declined to reinstate, prompting Governor Reynolds' renewed attempt at circumventing that judicial deadlock by enacting this new ban. If this legislative maneuvering sounds familiar, it's because it is. Other states, like South Carolina, have likewise responded to courts’ blocking of abortion bans by simply passing functionally identical new laws. 

  • The latest Iowa ban includes exceptions for vaguely defined “medical emergencies” throughout the pregnancy. It also contains exceptions until 20 weeks for cases involving fetal anomalies that are deemed “incompatible with life,” rape (if reported within 45 days) and incest (if reported within 140 days). As we have discussed many times in this digest, we know that requirements that victims of rape or incest report those crimes are cruel, medically unnecessary, and impose barriers to safely accessing health care. They are also inconsistent with research that shows that many victims are unwilling or unable to safely report the crime. Although we have seen the consequences of bans just like this one in the year since Dobbs, Republicans continue to go to extraordinary lengths to enact them, placing patients, providers and our entire democratic process at risk.
    

• Connecticut:

• Connecticut Governor Lamont signed additional protections for reproductive health care into law. The series of bills were approved by the Connecticut general assembly prior to the end of the legislative session, and, in the Governor’s words, they are enacted to “safeguard the rights of all persons in Connecticut to access an abortion and the contraceptive care they choose.” As other states restrict reproductive rights, laws like Connecticut’s are aimed at preserving them. The new laws create the following protections:

  • Public Act 22-128 protects medical providers from adverse actions taken by another state based on the provision of legal and competent reproductive health care services. The protections are designed to cover provision of care to individuals traveling to Connecticut from other states where abortion is illegal. The law protects providers from suspension, revocation or denial of licensure based on their provision of that care. 

  • Public Act 23-52 allows pharmacists to prescribe birth control without first requiring the patient to have an appointment with their physician. This law is aimed at increasing access to contraception, particularly in rural and remote areas where reproductive health care is limited. 

  • Public Act 23-41 increases access to reproductive care for college students at public institutions by requiring the institutions to develop a plan by January 1, 2024 that addresses student needs for contraception, abortion and gender-affirming care. The goal of this law is to increase access for students who live on campus and rely on their educational institutions for living necessities including food, housing, transportation, and health care needs. 

  • Public Act 23-56 aims to protect the data privacy of patients by establishing restrictions on the collection, sharing and selling of personal health data by business and service providers who use online platforms. Although the law uses broad healthcare language, it also explicitly protects reproductive rights. Protection of patient data is key in safeguarding against investigations into legally provided health care.
    

• Idaho 

• Groups have sued to challenge Idaho’s abortion trafficking law, arguing that it violates their right to interstate travel, as well as their First Amendment rights to free speech and expression. This challenge is a crucial one to watch, as its success or failure will  inform whether other states enact similar “abortion trafficking” legislation. As a reminder, Idaho’s law defines assisting a minor across state lines to receive an abortion without their parent or guardian’s consent as “trafficking.” Any adult who is prosecuted under the law faces the prospect of 2-5 years in prison. The language of the law is broad and ambiguous, and what might constitute a parent’s “consent” is unclear; this lack of clarity is purposeful and will ultimately “deter ever more conduct because people don’t know where the line is.” 

• The Department of Homeland Security explains that “human trafficking involves the use of force, fraud or coercion to obtain some type of labor or commercial sex act.” The conduct criminalized by Idaho’s law does not come close to resembling any accepted definition of “trafficking.” Under the law’s express terms, if a minor becomes pregnant, determines that they want an abortion and asks a trusted adult for help in safely obtaining that abortion, the adult could find themselves facing a prison sentence of up to 5 years. The minor’s consent to the abortion is not a defense to the law. Because courts are generally more willing to allow restrictions on the rights of minors, Republicans across the country have strategically cloaked restrictive laws in a false narrative about preserving parental rights and protecting children.
  

• FDA: 

• On the federal level, the FDA has approved the first over the counter birth control pill, a move lauded by reproductive rights advocates as concern grows about access to contraception becoming a renewed target of republican attacks. The medication, marketed as Opill, was first approved for prescription usage over 50 years ago, and the FDA has determined that it is both safe and effective in preventing pregnancy. The drug is expected to become available at pharmacies across the country in early 2024, although the cost is not yet known. Additionally, a growing number of states are allowing pharmacists to prescribe birth control, removing the obstacle of requiring the patient to have a physician visit prior to obtaining medication. According to The Guttmacher Institute, 24 states and the District of Columbia currently allow pharmacists to prescribe birth control. Although access to contraception, including birth control pills, is an important part of reproductive freedom, it does not eliminate the need for safe and legal abortion. Not everyone has access to contraception. Not every sexual encounter is consensual. No contraceptive works 100% of the time, even when used correctly. Not all wanted pregnancies are viable. Each of these realities (and countless others) mean that, although the FDA’s approval of this medication for over-the-counter use is certainly progress, it is no substitute for abortion rights.
  

What else is happening in access? 

• A single Republican Senator, Tommy Tuberville of Alabama, is blocking approximately 265 military officer nominations, citing his disapproval of the Pentagon’s policy of supporting service members and their families in seeking abortion care. Seven former defense secretaries have criticized this move and expressed concerns that it harms military readiness and national security. Senator Tuberville’s stonewalling of the nominations comes as contentious legislative debates continue over the question of military spending and abortion. 

• The U.S. Court of Appeals for the Sixth Circuit has reinstated Tennessee’s ban on gender affirming care for minors while the litigation challenging the ban plays out. This was the first time a federal court allowed a gender affirming care ban to take effect, and the Court’s opinion cited Dobbs (the case that overturned Roe) as supporting authority. Any expansion of Dobbs to limit other privacy rights should be a cause for great concern. You can read more about the relationship between the fight for trans rights and the fight for reproductive rights here. 

• Approximately a week after the Sixth Circuit’s opinion came out, a federal judge lifted the injunction on Kentucky’s ban on gender affirming care, allowing it to take effect, 

• State laws banning gender affirming care for minors are forcing trans youth and their families to uproot their lives and leave their own communities in order to seek gender affirming healthcare in other states. You can read some of their stories here. 

• Litigants in Texas are suing for clarification to the state’s total abortion ban; these women went to court this week and provided moving testimony about their experiences trying to access necessary health care under the unclear and medically ambiguous terms of the ban. 

• A Nebraska judge heard oral arguments this week in the ACLU’s case challenging the state’s combined gender-affirming care and abortion ban. No ruling has been issued at this time. 

• A relatively small Christian conservative group is making headway in its efforts to promote its agenda at the local level. The group has organized around support for things like limitations on sex education in school, banning books that discuss subjects like abortion or gender identity, and limiting diversity and inclusion efforts. 

• Abortion advocacy group “Plan C” explains how patients can access abortion pills in every state.

• Australia is set to ease restrictions on medication abortion, citing the need to improve accessibility for remote and rural communities.

Issue of the Week: Freedom of Religion and Abortion

This week’s “Issue of the Week” kicks off a series focusing on the different strategies being used to protect reproductive freedom; it has been guest written by L4GG intern Veronica Dickstein.

In the wake of recent disheartening SCOTUS decisions and the erosion of reproductive rights in many U.S. states, it can be difficult to  see the positive developments and progress made  that provide hope for the future. Yet, across the country, attorneys and advocates are using creative strategies to protect bodily autonomy in a post-Dobbs legal landscape.

One particularly compelling argument is currently being made in Florida, Kentucky, Missouri, and Indiana. Plaintiffs in each of these states argue that abortion bans restrict their religious freedom and are therefore unconstitutional or in violation of their state’s Religious Freedom Restoration Acts. This strategy is especially interesting, as anti-choice advocates have historically claimed religion as their own and positioned it as diametrically opposed to abortion rights. However, like any aspect of religion, beliefs about abortion are not a monolith–they vary greatly between faith traditions and the views of the individuals who follow them. 

The following cases make this argument in court, arguing that the plaintiffs’ ability to freely exercise their religious beliefs must include access to reproductive freedom:

• Florida - Generation to Generation v. State of Florida

  • The Plaintiffs in this case are suing the State of Florida, contending that the Reducing Fetal and Infant Mortality Act is unconstitutional.They argue that because Jewish law states that “abortion is required if necessary to protect the health, mental or physical, or well-being of the woman,” and Florida’s law does not allow for abortion in all of these circumstances, the act unconstitutionally violates the plaintiffs’ freedom of religion.

  • This case is ongoing.

• Kentucky

  • The Plaintiffs in this case filed suit against Kentucky Attorney General Daniel Cameron and Jefferson County Attorney General Thomas Wine.

  • This case draws on Kentucky’s Religious Freedom Restoration Act, which states that “no preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity.” 

  • Plaintiffs argue that the bill’s declaration that life begins at conception conflicts with commonly held Jewish beliefs, and therefore violates their religious freedom. They also claim that the law’s abortion restrictions give preferential treatment to those with Christian beliefs and are, therefore discriminatory.

  • This case is ongoing. 

• Missouri - Rev. Blackmon v. Missouri 

  • Missouri’s abortion ban was described by state legislators in explicitly religious terms. Missouri Representative Adam Schnelting said the following when discussing the ban: “I know of no greater way of affirming the natural rights of man than to declare that they are a gift from our Creator that neither man nor government can abridge.” The Plaintiffs in this case argue  that this faith-based justification for the ban  is a violation of the separation of church and state, something clearly protected in Missouri’s Constitution. Like the Florida and Kentucky plaintiffs, the Missouri Plaintiffs also argue that  this ban forces all Missouri residents to adhere to a definition of life only held by some specific sects of Christianity. The 13 Plaintiffs, all religious clergy members belonging to different Christian sects, Unitarian Universalism, and Judaism, do not share those religious beliefs.

  • This case is ongoing.

• Indiana - Anonymous Plaintiffs, Hoosier Jews for Choice v. Medical Licensing Board of Indiana

  • As mentioned in L4GG’s 7/07/23 repro digest, this case argues that Indiana’s abortion ban infringes on  the religious freedom of the Jewish, Muslim, and spiritual plaintiffs, in violation of Indiana’s Religious Freedom Restoration Act. The plaintiffs’ respective religions do not ascribe to the belief that life begins at conception or that a fetus is entitled to the same rights as a born child. Like other cases, this one argues that Indiana’s constitutional clause prohibiting the state from giving one religion preferential treatment over another is violated by the state's extreme abortion ban.

  • This case is especially important because the plaintiffs were granted a preliminary injunction by Indiana state trial court in December 2022. The state has appealed this injunction and Americans United along with other organizations filed an amicus brief arguing that the injunction should hold. Although there is no clear outcome for this case at this time it demonstrates that courts even in states hostile towards reproductive rights and bodily autonomy may respond favorably to a religious-freedom-oriented argument. 

  • This case is ongoing.

Using religion to combat abortion bans is ingenious, because it is so often weaponized to create and promote them. This irony is compounded in the cases that use their states’ Religious Freedom Restoration Acts, as these same acts are sometimes used to discriminate against LGBTQ+ people, something fighting abortion bans helps combat. Contrary to the recent abortion bans that often, whether explicitly or implicitly, use Christianity as an excuse for restrictive legislation, religion in America is not monolithic. These cases serve as beacons of hope in tough times for reproductive rights in America, using religious diversity as a shield to protect our democracy, rather than a sword to cut it down.