Emergency Medicine on Trial at Supreme Court: 4/24

L4GG Experts Provide Case Overview + Debrief Call for Landmark SCOTUS Case on Emergency Abortions

A Landmark Case

On April 24, the U.S. Supreme Court will hear oral arguments in Idaho v. United States, a historic post-Dobbs case that will determine the scope of the federal Emergency Medical Treatment and Labor Act (EMTALA) in the face of state abortion bans.

Idaho’s abortion ban criminalizes the delivery of abortion services except where necessary to save the life of the pregnant person, remove an ectopic pregnancy or in very limited cases of reported rape or incest, making no exception for those cases where the abortion is necessary to protect the patient’s health. However, for forty years, EMTALA has required Medicare-recipient emergency rooms to provide stabilizing care to any patient who needs it to preserve their life or health. Idaho argues that they are able to enforce their more restrictive ban over federal EMTALA obligations. 

This case is not only critical for access to reproductive healthcare, but also tests whether a state can unilaterally override federal regulations that protect the right of every person to access emergency medicine. It leaves medical professionals with an impossible choice: either violate Idaho’s law, risking criminal prosecution and loss of their professional license, or violate EMTALA and face federal enforcement and civil sanctions.

The ramifications of this case are immense, potentially influencing not only abortion access but also the broader spectrum of emergency medical care under federal law. If a state can “carve out” abortion from federally mandated services, it threatens access to a range of highly politicized medical care, from AIDS-related emergencies to treatment of high-cost chronic or mental health conditions.

Our debrief will provide insight into the legal and ethical dimensions of this crucial public health issue.

Understanding the Case: A Special L4GG Explainer

To navigate the complexities of this case and its potential impact, L4GG has crafted an accessible case overview and listening guide. This guide offers a clear understanding of the issues at stake, the opposing arguments, and the significance of this Supreme Court case for emergency medicine and reproductive health rights in the U.S.

Join Us for a Deeper Dive: L4GG’s Same-Day Analysis Call

Later that same day, at 4 PM ET, join our staff experts in a same-day analysis call to unpack the oral arguments and discuss their implications for healthcare providers and patients alike. Our Supervising Attorney for Civil Rights, Khadijah Silver, JD/MPH, and Staff Attorney for Reproductive Justice, Alyssa Morrison, JD, will highlight the key issues and what they mean for emergency medical care across the United States.

This debrief call will illuminate the critical aspects of Idaho v. U.S. and galvanize attendees to protect our fundamental right to health and reproductive autonomy.

Why You Should Attend

The implications of this Supreme Court case will touch on the very core of reproductive rights and emergency medicine access in the United States. Whether you're a legal expert, a reproductive rights advocate, or simply someone who cares deeply about the right to health, our analysis event and listening guide will equip you with the knowledge you need to understand the outcomes of this historic case. We hope you'll join us on 4/24 at 4 pm and stand united with us for reproductive rights!

A Guide to Understanding the Next Major Abortion Case at SCOTUS on March 26

A Landmark Case

On March 26, the U.S. Supreme Court is set to hear oral arguments in Alliance for Hippocratic Medicine vs. FDA, marking the first major abortion-related case since the Dobbs v. Jackson ruling. This pivotal moment could drastically shape the future of access to medication abortion (mifepristone) in the United States and challenge its availability nationwide.

Despite mifepristone's proven safety record, anti-choice organizations are pushing to limit its accessibility, even in states where abortion remains a legal right. The outcome of this case could have profound implications for reproductive rights, making it a historic event in the ongoing battle for healthcare access and bodily autonomy.

Understanding the Case: A Special L4GG Explainer

To navigate the complexities of this case and its potential impact, L4GG has crafted a comprehensive case overview and listening guide. This guide offers a clear understanding of the issues at stake, the opposing arguments, and the significance of this Supreme Court case for reproductive health rights in the U.S. It also delves into the potential changes to mifepristone access, the FDA's authority, and the implications for marginalized communities.

Join Us for a Deeper Dive: L4GG’s Same-Day Analysis Call

A couple of hours after the Supreme Court's hearing, we invite you to join L4GG for a special same-day analysis call on 3/26 at 4 PM ET. This live event will feature L4GG’s Supervising Attorney for Civil Rights, Khadijah Silver, JD/MPH, and Staff Attorney for Reproductive Justice, Alyssa Morrison, JD, as they break down the day's proceedings and offer expert insights into the arguments presented and their significance.

This debrief call will illuminate the critical aspects of Alliance for Hippocratic Medicine vs. FDA and galvanize attendees to protect our fundamental right to health and reproductive autonomy.

Why You Should Attend

The implications of this Supreme Court case will touch on the very core of reproductive rights and healthcare access in the United States. Whether you're a legal expert, a reproductive rights advocate, or simply someone who cares deeply about the right to health, our analysis event and listening guide will equip you with the knowledge you need to understand the outcomes of this historic case. We hope you'll join us on 3/26 at 4 pm ET and stand united with us for reproductive rights!

Preserving Reproductive Rights: The Power of Religious Freedom in the Fight Against Abortion Bans

Written by L4GG’s 2023 Summer 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 also see the positive developments in reproductive rights happening nationwide. Yet, across the country, attorneys and advocates are using creative strategies to protect bodily autonomy in a post-Dobbs America.

One such strategy centers around freedom of religion, an ideal central to the fabric of our country and our constitution. White nationalist movements have used religion to control and restrict, but this legal initiative shows that religion does not have to be used in such a poisonous, distorted way.

In Florida, Kentucky, Missouri, and Indiana, pro-choice advocates are arguing that abortion bans restrict religious freedom and are, therefore, unconstitutional. Some cases with this argument focus on their respective states’ constitutions’ enshrined right to freely practice religion. Meanwhile, some focus on their state’s Religious Freedom Restoration Acts, acts modeled off the 1993 federal act of the same name that aimed to strengthen religious freedom protections. 

Let’s go through some of the cases that use this religion-oriented strategy:

• In Florida, plaintiffs are declaring the Reducing Fetal and Infant Mortality Act (a 15-week abortion ban) unconstitutional in Generation to Generation v. State of Florida. In this ongoing case, plaintiffs 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,” which this act does not allow, the act is therefore unconstitutional because it violates the plaintiffs’ freedom of religion. Using Judaism in these cases is a common thread, due to its assertions that anything can be justified to save a life; Judaism also lacks any evidence that a fetus would be considered a life in the same way as a human baby, or a pregnant person for that matter.

• In the same vein, in Kentucky, plaintiffs in the ongoing Sobel v. Cameron are filing 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 because the bill declares that life begins at conception, an ideology that conflicts with Jewish religious beliefs, this bill violates their religious freedom. They also claimed that, consequently, this bill gave preferential treatment to those with Christian beliefs and was, therefore, discriminatory.

• In Rev. Blackmon v. Missouri, plaintiffs are challenging the constitutionality of Missouri’s abortion ban due to its undeniably religious character; Missouri’s abortion ban was described by state legislators in explicitly religious terms. Missouri Representative Adam Schnelting said 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.” Plaintiffs in this case claim that because of this, the ban is a violation of the separation of church and state, something clearly protected in Missouri’s constitution. They also argue, similarly to plaintiffs in the Florida and Kentucky cases, that this ban forces all Missouri residents to adhere to a definition of life only held by some—mostly those part of 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, with important implications outside of the reproductive rights arena. How can we call ourselves a democracy, not a theocracy, when we enact legislation in the name of the Judeo-Christian creator?

• As mentioned in L4GG’s 7/07/23 Repro Digest, Anonymous Plaintiffs, Hoosier Jews for Choice v. Medical Licensing Board of Indiana argues that Indiana’s abortion ban violates the religious freedom rights of the Jewish, Muslim, and spiritual plaintiffs. It therefore violates Indiana’s Religious Freedom Restoration Act; the plaintiffs’ respective religions do not hold the beliefs that life begins at conception or that a fetus is entitled to the rights of a human baby. Like other cases, this one also argues that Indiana’s constitutional clause prohibiting the state from preferentially treating any one religion is violated by the state's extreme abortion bans. This case is especially important because the plaintiffs were granted a preliminary injunction by Indiana state trial court in December 2022, meaning that while litigation continues, the abortion can cannot be enforced against the plaintiffs. The state has appealed this injunction. Americans United along with other organizations is continuing to advocate as to why the injunction should hold and the ban should not be enforced—not just for the plaintiffs, but for all Indiana residents. Although there is no clear outcome for this case right now, it demonstrates that courts even in states usually hostile towards reproductive rights and bodily autonomy may respond to a religious-freedom oriented argument to mitigate abortion bans.

Using religion to combat abortion bans is ingenious because it has so often been used to create them. This irony is compounded in the cases that use their states’ Religious Freedom Restoration Acts, which have been used to combat laws that aimed to fight discrimination and require insurance companies to cover contraceptives. 

Contrary to the recent abortion bans that often, whether explicitly or implicitly, use Christianity as an excuse for suffocating legislation, religion in America is not monolithic. To think so is both naïve and discriminatory. It is dangerous. These cases serve as beacons of hope in tough times for reproductive rights in America, using religious diversity to protect and progress and working to maintain our democracy.

List of PDFs

• Document: Complaint for Declaratory Relief and for Temporary and Permanent Injunction Declaring House Bill 5, Invalid Unconstitutional and Unenforceable (June 10, 2022) (Generation to Generation v. Florida)

• Document: Complaint for Declaratory Relief (Sobel v. Cameron)

• Missouri Constitution 

• Petition for Injunctive and Declaratory Relief (Blackmon v. Missouri) 

• Amended complaint in Blackmon v. Missouri 

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

L4GG: One year after Dobbs, we’re helping states like NY win the fight for bodily autonomy.

L4GG is thrilled to share some exciting news that will profoundly impact our community’s fight to protect our access to healthcare and bodily autonomy. Over the weekend, Governor Kathy Hochul signed two groundbreaking laws that significantly advance reproductive justice and the civil rights of transgender people in New York. This momentous achievement is a testament to the unwavering dedication of L4GG’s policy team and the collective support of advocates like you.

L4GG staff participated in significant advocacy efforts on both pieces of legislation. We worked with allies on the ground in New York and used our expertise in public health law and policy to ensure that the state grounded these new laws in strong constitutional, case law and statutory bases.

We extend our deepest gratitude to Governor Hochul for her steadfast commitment to protecting the rights and well-being of all New Yorkers. With her leadership, New York sets an inspiring example for the rest of the nation.

Now, let's delve into the key provisions of each law:

Law #1: Strengthening Access to Reproductive Health Care

• Enables New York providers to offer telehealth reproductive health care and medication abortion to patients in states with restrictive abortion laws.

• Shields doctors, providers, and facilitators from litigation in those states.

• Prevents professional discipline for delivering reproductive telehealth services to out-of-state patients.

• Expands protections for New York healthcare providers treating out-of-state patients.

"This moment is a resounding victory for reproductive justice and a necessary step forward in protecting healthcare providers and patients. Through L4GG's Reproductive Health Legal Assistance project, we have witnessed firsthand the challenges doctors face navigating the rapidly changing and complex landscape of reproductive healthcare laws. With the signing of these laws in New York, both doctors and their patients are getting the protection they deserve."

- Alyssa Morisson, L4GG's Reproductive Justice Staff Attorney

Law #2: Safeguarding Trans Rights and Promoting LGBTQ+ Equality

• Prohibits child removal based on gender-affirming care in custody cases.

• Restricts law enforcement cooperation on gender-affirming care performed in New York.

• Prevents subpoenas related to out-of-state proceedings on gender-affirming care.

• Ensures addiction services based on gender identity, expression, and sexual orientation.

• Removes outdated and stigmatizing language from "sexual orientation" definition.

• Mandates gender-neutral terms in laws, rules, and resolutions.
  

"This law is a great first step and a meaningful signal that New York cares about its trans, non-binary, and intersex residents. It is constitutionally sound and incremental in its approach to reflect that these sorts of laws are untested and to protect people from harm while recommitting the state to our protection. We will continue to support New York advocates in their fight for the right to privacy and equitable healthcare for everyone in the state and help them achieve both rigorous and ambitious wins that center the needs of trans people. As cultural leaders and the originators of Pride throughout history, trans, non-binary, intersex, and gender nonconforming people have made this state great and belong here, now and always." 

- Khadijah Silver, L4GG Civil Rights Supervising Attorney

These achievements reinforce the urgency of L4GG's mission and underscore the vital role of good government in achieving meaningful change. This is just the beginning of the road – states and cities across the country are requesting L4GG’s help to ensure they are offering their residents the strongest protections possible, while remaining within the bounds of the law. It reinforces the urgency of L4GG's mission and underscores the vital role of good government in achieving meaningful change.

If you would like more frequent updates on the state of bodily autonomy laws in the country, subscribe to our bi-weekly Reproductive Health Digest, which highlights major changes in reproductive health laws across 56 states and territories.

L4GG extends its deepest gratitude to all those who have supported our crucial work. Together, we stand united in our commitment to protecting and advancing the rights and autonomy of all individuals in our community.

L4GG Victory: Maryland Takes a Stand in Protecting Access to Trans Health Care

In a resounding victory for transgender rights, Maryland has become the 11th state to proactively protect gender-affirming care through a critical Executive Order. Maryland’s Order sends a strong message about its commitment to equality and inclusion and shields trans individuals and healthcare providers from attacks from states like Florida and Texas. Lawyers for Good Government, in collaboration with the National Center for Transgender Equality and Trans Formations Project, worked closely with Maryland Governor Wes Moore's office to draft and advocate for this groundbreaking order!

Let's delve into the details of this significant milestone and the impact it will have on transgender individuals' access to healthcare.

Shielding Trans Rights in Maryland:

At a time when transgender rights face challenges from states like Florida and Texas, Maryland's Executive Order serves as a shield, ensuring protection for transgender individuals in the face of adversity. The order encompasses several key provisions aimed at safeguarding their rights and well-being, including:

1. Protecting Doctors Providing Care:
   
   The Executive Order safeguards the medical licensing of physicians who provide lawful gender-affirming care in Maryland. This protection remains intact even if these physicians are being investigated by another state hostile to transgender care. By doing so, Maryland solidifies its commitment to providing inclusive healthcare options for all its residents.
   
   

2. Rejecting Invasive Investigations:

Under the Executive Order, Maryland categorically refuses to participate in another state's criminal investigation into individuals who have received lawful medical care. This includes measures such as declining to respond to extradition requests, participating in subpoenas aimed at anyone obtaining gender-affirming care for themselves or their child, or sharing personal medical information. This provision shields transgender individuals from discriminatory targeting and interference by adverse states.

Maryland's Executive Order marks a watershed moment in the fight for transgender rights. While this victory is cause for celebration, it also serves as a reminder that the fight for bodily autonomy, including trans health, LGBTQIA+ rights, and reproductive freedom, is far from over. The challenges posed by other states emphasize the need for continued advocacy and support. By recognizing and amplifying this triumph, we can inspire other states to follow suit and ensure gender-affirming care is protected across the nation.

Please join us in commending Governor Moore for taking a stand for trans rights and urging other states to join this critical movement:

1. Thank Governor Moore: Please show your appreciation to Governor Moore for taking a stand on this crucial issue. Click here to send a quick message of thanks to his office, expressing your gratitude for his leadership in protecting access to healthcare for transgender individuals.
   

2. Donate to Fight for Trans Rights: Your contribution to the L4GG Action Fund plays a crucial role in helping us extend these essential protections to other states, both empowering transgender individuals to access the care they need and deserve and protecting the rest of us from the overreaching impacts of hateful laws.
   

3. Share: Help us spread the word about this incredible win on your social media platforms and by forwarding this email. By amplifying this victory, we can inspire other states to follow Maryland's example and take proactive steps to protect gender-affirming care.

DeSantis Enacts Cruel, Anti-LGBTQ+ Laws on International Day Against Homophobia, Biphobia, and Transphobia

Written by Khadijah Silver, Supervising Attorney of Civil Rights at L4GG

For many of us, there is one fear greater than the fear of death: fear of harm to those we love. The idea of our loved ones’ suffering drives many of our bravest feats, our worst nightmares, and our most impassioned advocacy. Many of us have ancestors that fled to this country, escaping oppression or death, seeking the right to be themselves, free of persecution. Some of us are Black or Native American, and have known what it means to flee one’s home and seek sanctuary from bigotry in another state or even another country.

Right now, this week, family members of transgender, nonbinary and gender nonconforming people are confronted with that same calculus, as our southernmost state has signed a host of laws criminalizing trans people’s use of public facilities, access to healthcare, and ability to exist safely, authentically and in dignity. Should we stay in our homes, in a place that has written hatred for us into the letter of the law, and fight? Or should we leave that home behind to protect ourselves and those we love?

On Wednesday morning, standing in a private Christian school in Tampa, a city with a lesbian mayor, behind a lectern with a sign reading “let kids be kids,” Florida Governor Ron DeSantis forced families across his populous state to ask this question as he signed a slate of anti-LGBTQ+ bills targeting both youth and adults and further stripping Floridians of their civil liberties.

The first and most immediately dangerous of these new laws is SB 254, an anti-trans healthcare bill that criminalizes gender-affirming care for minors, vastly curtails care for adults, and permits unsupportive parents to claw back custody of a trans child residing out-of-state, on the grounds that receipt of gender affirming care constitutes an emergency akin to child abuse. Already, adults have been forced off their medication as prescription refill requests are refused. This law is a human rights violation of tremendous proportions, placing Florida at odds with the  United States government and international bodies such as Amnesty International and the World Medical Association, which  have found that deprivation of medication is a form of torture.

The second, SB 1438, bans vaguely and broadly defined “adult oriented performances'' and attaches criminal penalties for officials who grant permits for events featuring drag. In addition to drag shows themselves, this bill is likely to impact event permitting for the state’s wildly popular pride events – already, organizers have canceled Tampa’s “Pride on the River,” which boasts 10-20,000 visitors a year, and Port St. Lucie’s pride celebration.

From the House, HB 1069 further expands Florida’s “Don’t Say Gay” bill, which restricts pronoun use in both public and private schools and declares that it is “false” to utilize a pronoun that does not conform to a person’s sex assigned at birth. The bill also broadly prohibits discussion of gender identity or sexual orientation in the classroom, opening the door to penalties for LGBTQ+ supportive school officials. 

Finally, Governor DeSantis signed HB 1521, a trans bathroom bill which allows individuals to ask trans folks to leave the bathroom that aligns with their gender identity and attaches criminal penalties if the trans person fails to do so, once again elevating the “rights” of the intolerant over the safety of trans people. HB 1521 also opens all publicly owned spaces up to lawsuits brought by the state AG or revocation of their operating licenses if they are reported for noncompliance with the law. 

“Taken together, these bills constitute an urgent threat to the safety and wellbeing of LGBTQ+ Floridians and visitors to the state, dangerously expanding the criminalization of already marginalized groups. They harm members of our staff, our community, and our stakeholders.

Further, although he has not yet formally announced his candidacy, Governor DeSantis has indicated in no uncertain terms that he intends to run for president in 2024, using bigotry as his platform. His potential candidacy is a threat to the rights of all Americans, and his record of viciously legislating against bodily autonomy, LGBTQ+ rights and abortion must be viewed as absolutely disqualifying. L4GG calls on its community to strongly condemn the Florida legislature’s unjustifiable actions in passing these laws and to stand in solidarity and action with all LGBTQ+ Floridians. ”

— Khadijah Silver, Supervising Attorney of Civil Rights at L4GG

As a nonbinary attorney that was disowned for my gender identity as a young person and forced back into the closet to receive my mother’s care when I fell ill, I am terrified today. Not just for myself, but for my loved ones in Florida, Texas and across the country that keep sending me Signal messages, asking “what should I do?” I am terrified for the local attorneys in states with bans on gender-affirming care, writing me to ask, “what can I do?” And, I am terrified for our country, which does not have a clear answer for them. Please join all of us at L4GG in standing against these hateful laws, and standing up for your trans loved ones. 

Please join all of us at L4GG in standing against these hateful laws, and standing up for your trans loved ones. Read more about the challenges they are facing at L4GG.org/TransHealth.

L4GG Condemns Court Ruling to Pull Abortion Medication Off Market

Last Friday, federal judge Matthew Kascmaryk, of the Northern District of Texas, issued a ruling invalidating the Food and Drug Administration’s (FDA) approval of mifepristone, one of two medications used in a standard medication abortion regimen. Mifepristone has been approved by the FDA for use in medication abortions since 2000, and its safety and efficacy records are exceptional.  

This decision is the latest in a slew of anti-abortion policies and rulings since the Supreme Court overturned Roe v. Wade last year, and if allowed to take effect, it could be the most catastrophic ruling since Dobbs itself. Judge Kascmaryk’s decision would require manufacturers to cease distribution of the medication during the pendency of the litigation, further limiting access to abortion care for patients nationwide, including in those states where abortion is legal and protected. Mifepristone is used in over 50% of pregnancy terminations in the U.S., and without it, patients across the country will have trouble finding timely medical care. 

Judge Kascmaryk’s ruling is anti-choice and is a vicious attack against the right to bodily autonomy.

““In an attempt to further limit access to reproductive care, Judge Kascmaryk’s ruling ignores or distorts decades of credible data about the safety and efficacy of mifepristone for medication abortion. Regardless of the ultimate outcome of the litigation, it represents another political intrusion into a medical decision making process that should only take place between doctor and patient. ” ”

— Alyssa Morrison, Reproductive Justice Staff Attorney at Lawyers for Good Government (L4GG)

The same day, a federal judge in Washington issued a competing ruling that would prohibit the FDA from discontinuing its use. It is unclear at this time what the impact of the competing rulings will be on access to this essential medication.

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Reproductive Health Legal Assistance Project (RHLAP)

It is more crucial than ever for lawyers to fight for reproductive health and abortion access post-Dobbs. L4GG is continuing to provide reproductive healthcare providers with crucial legal guidance and updates on abortion laws in 56 states and territories through our Reproductive Health Legal Assistance Program (RHLAP). No matter what unjust policies are enacted in our country, we stand firm in our fight for reproductive justice.

If you are interested in volunteering for RHLAP, click here to learn more!