Developments in Abortion, Autonomy, and Access:
This week’s Digest covers Wyoming’s new 6-week abortion ban, an Indiana court’s ruling on abortion and religious freedom, Senator Josh Hawley’s attempts to rescind FDA approval for mifepristone, legislative and policy developments related to fetal personhood, and new research about how abortion bans impact where people choose to live and work. As always, please read on to the end for the news that you need to know.
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Reproductive Rights and Health Equity News:
This Week’s Must-Read:
This week’s must-read comes from ProPublica and details how pregnant patients have been forced by court order to undergo unwanted c-sections. The practice of court intervention in birthing dates back to the 1980s and is rooted in the idea that the state’s interest in unborn life gives it authority to override a pregnant patient’s medical decisions, even if that means operating on a patient without their consent. As fetal personhood arguments like this gain traction in the mainstream and more and more states pass laws granting fetuses and embryos legal rights, concerns over the erosion of the patient’s rights are growing.
Legislation & Litigation:
Overview:
An Indiana court has issued a ruling blocking the state’s abortion ban for patients whose sincerely held religious beliefs dictate that pregnancy termination is the proper course of action;
Wyoming Governor Mark Gordon has signed a new fetal “heartbeat” bill into law, restricting abortion after 6-weeks gestational age; a group of abortion rights advocates have already challenged it in court;
Republican Senator Josh Hawley has introduced legislation to rescind FDA approval of mifepristone; and
Arizona lawmakers are considering a fetal personhood bill that would define embryos and fetuses as pre-born children and allow child support from the moment a person realizes they are pregnant.
Indiana Court Partially Blocks Abortion Ban on Religious Freedom Ban:
In early March, an Indiana judge issued a ruling permanently preventing the state from enforcing its total abortion ban against individuals who say it violates their sincerely held religious beliefs. The state’s abortion laws ban care at all gestational ages, except in cases where the patient’s life or health are at serious risk, and certain cases involving rape, incest, or fetal anomalies. The law does not allow abortions for reasons related to mental health. Over three years ago, Hoosier Jews for Choice and a number of individual plaintiffs sued the state, arguing that the ban violated the state’s Religious Freedom Restoration Act (RFRA).
In their complaint, the plaintiffs argue that Jewish beliefs around when life begins and Jewish laws’ requirement of prioritizing the mother’s physical and mental health prior to birth mean that their faith would, in certain circumstances, dictate pregnancy termination as the proper course of action. However, under Indiana law, they would be prohibited from seeking that course of treatment. Indiana’s RFRA prohibits the state from substantially burdening a person’s religious practice, absent a compelling state interest. In issuing a permanent injunction, Judge Christina Klineman sided with the plaintiffs’ religious freedom arguments and wrote that “[p]enalizing providers to avoid the violation of RFRA is an untenable end-run around the conflict in these laws.” Her ruling applies to any person in Indiana whose religious beliefs require them to seek an abortion otherwise banned by state law. The Attorney General has appealed that ruling.
Wyoming Governor Signs Fetal “Heartbeat” Bill into Law:
In January, the Wyoming Supreme Court struck down the state’s abortion bans on the grounds that they violate the Wyoming Constitution’s guarantee of individuals’ rights to healthcare decisionmaking. In response, the legislature swiftly introduced and passed a “heartbeat” ban, which prohibits abortion at approximately 6-weeks gestational age - a point at which many people do not yet know that they are pregnant. Republican Governor Mark Gordon signed the bill into law on March 9th, despite previously expressed reservations about its lack of exceptions for victims of rape or incest. The day after Governor Gordon signed the bill, a group of abortion rights advocates filed a motion asking the court to block it. In their motion, they requested to add their challenge to the 6-week ban to an ongoing lawsuit challenging other abortion restrictions in the state. Whether the court will find that the law has the same constitutional deficiencies as the previously-struck total ban remains to be seen; however, for the time being, the one remaining abortion clinic in the state has canceled appointments for patients past 6 weeks.
Senator Josh Hawley Introduces Legislation to Rescind FDA Approval of Mifepristone:
Republican Senator Josh Hawley of Missouri has introduced federal legislation to withdraw FDA approval for mifepristone. Medication abortion now accounts for over 60% of abortions performed in the U.S. and access to abortion pills via telehealth has served as a lifeline for patients living in abortion ban states. In recent months, anti-abortion groups and activists have become vocally frustrated with the Trump Administration’s failure to take aggressive action to curtail access. Although mifepristone has been approved for over 25 years and has an excellent safety record, Hawley claims that “the science” shows that “the chemical abortion drug is inherently dangerous to women and prone to abuse.” His bill would not only strip mifepristone of its FDA approval but would also create a private right of action for patients to sue its manufacturers. Thus far, the bill has received little support from fellow Republican lawmakers - many of whom are likely weighing the politics of opposing abortion in a midterm year. President Trump, who has been relatively quiet on the issue of abortion in his second term, is now caught in a bind between dissatisfied anti-abortion groups threatening to withhold support in the midterms and the reality that opposing abortion is deeply politically unpopular.
Arizona Considers Fetal Personhood Legislation:
While we cannot possibly report on all of the pieces of anti-abortion legislation being introduced around the country, it is important to highlight those that are representative of broader anti-abortion trends and strategies. Arizona HB 2144 falls into that category. The proposed law would allow pregnant people to seek child support from the moment they realize they are pregnant. It would also define “pre-born child” under state law as embryos and fetuses from conception to birth. Although proponents of the bill insist that they are merely trying to provide more support for pregnant people, critics point to its obvious fetal personhood implications. The law’s definition of “pre-born child” and attachment of child support obligations that traditionally do not apply until a child is born create a legal framework for granting embryos and fetuses the same kinds of rights that born persons have. This kind of fetal personhood structure paves the way for abortion opponents to further entrench abortion restrictions and argue that abortion violates state law.
Trend and Policy Watch:
Texas Attorney General Threatens Mental Health Providers:
Texas Attorney General Ken Paxton has threatened mental health providers who treat transgender or gender non-conforming minors. Although Texas already bans gender-affirming care for minors, AG Paxton issued an opinion on February 27th, declaring that mental healthcare providers are similarly prohibited from “transitioning” minors - though it is unclear what conduct would fall under this asserted prohibition. In his published statement on the opinion, he stated that “[a]ny radical facilitating the ‘transitioning’ of our kids is committing child abuse,” and that the opinion “should send a clear warning there will be consequences for any medical professional, whether a doctor or therapist, who is illegally ‘transitioning’ Texas kids.” The opinion will inevitably have its intended effect: chilling the speech and therapeutic efforts of mental health professionals treating minors for issues related to gender.
Virginia Towns Using Zoning Laws to Restrict Abortion:
Although abortion is legal in Virginia - making it a singular stronghold of access in the South - certain towns have begun weaponizing zoning laws to enact restrictions. For example, in Lynchburg, the City Council recently enacted a zoning ordinance prohibiting clinics that provide abortion services from operating near certain locations, such as schools, parks and churches. The ordinance renders nearly all of Lynchburg off-limits, highlighting the ways in which laws seemingly unrelated to healthcare can be used to choke off access. Similarly, in Roanoke County, the Board of Supervisors passed a resolution in February instructing the planning commission to examine how it could limit the locations of abortion clinics. Reportedly, the resolution “was included on the board’s consent agenda, usually reserved for routine, procedural items that all parties have previously agreed on.” Individuals in both Lynchburg and Roanoke County have criticized the political maneuvering for lacking transparency.
Abortion Absent From State of the Union Address:
President Trump’s State of the Union Address, delivered on February 24th, conspicuously skirted the issue of abortion, with the word not being mentioned a single time. Although President Trump has previously referred to himself as “the most pro-life president in history” and proudly touted his administration’s anti-abortion agenda, he has been remarkably quiet on the subject in the past several months. Notably, multiple anti-abortion groups and leaders have publicly expressed discontent with the President’s failure to take more aggressive action to ban abortion at the federal level in his second term and called on the administration to restrict access to mifepristone, following medication abortion’s post-Roe rise in popularity. The administration’s silence likely reflects a calculation that aggressively taking on abortion would hurt the President and his allies politically in an already-contentious midterm year.
Surgeon General Candidate Espouses Anti-Birth Control Views:
President Trump’s nominee for surgeon general, wellness influencer Dr. Casey Means, faced intense scrutiny during her confirmation hearing before the Senate. Dr. Means, who would act as the top doctor in the country, was asked to answer for her history of anti-vaccine and anti-birth control statements and positions. She was specifically pressed on issues related to whether parents should have their children vaccinated, the efficacy of the flu vaccine, and debunked links between autism and vaccines. She was also questioned about her history of statements criticizing birth control, including referring to birth control pills as disrespectful to human life. At this time, it is unclear whether Means will garner the votes necessary to secure the position.