Developments in Abortion, Autonomy, and Access:
This week’s Digest details litigation developments in Georgia, California, Texas, and Guam, as well as the reclassification of mifepristone and misoprostol as controlled substances in Louisiana. We also walk through policy and political developments in the reproductive health landscape. Please read on to the end for the news that you need to know.
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This Week’s Must Read:
Reproductive rights and justice are deeply intersectional issues, impacting and being impacted by nearly all other issue areas. At present, we are witnessing how the effects of climate change are worsening an already fraught healthcare landscape in the South, as Florida, North Carolina, and Georgia grapple with the effects of Hurricane Helene and Hurricane Milton. You can read about how these extreme weather events are impacting access to care, here.
Legislation & Litigation:
Georgia Abortion Ban Struck and Reinstated: In the last two weeks, Georgia’s 6-week abortion ban was struck down by the Fulton County Superior Court and then swiftly reinstated by the state supreme court.
On September 30th, Fulton County Superior Court Judge Robert McBurney issued an order striking Georgia’s 6-week abortion ban as unconstitutional, briefly allowing abortions to resume until about 22 weeks gestational age. In his opinion, Judge McBurney held that women have a right to pre-viability abortion, writing that “the liberty of privacy means that [the pregnant person] alone should choose whether to serve as human incubators for the five months leading up to viability[;] it is not for a legislator, a judge, or a Commander from the Handmaid’s tale to tell [them] what to do with their bodies during this period.” He also criticized an originalist approach to interpreting the state constitution that inherently excludes women and people of color, explaining that “any rooting around for original public meaning from that era would yield a myopic white male perspective on an issue of greatest salience to women, including women of color.”
Although Judge McBurney’s opinion was a win for reproductive rights and allowed a brief respite for pregnant people in the state, it predictably was swiftly overturned by the Georgia Supreme Court. Georgia Attorney General Chris Carr immediately asked the state supreme court to place Judge McBurney’s decision on hold pending appeal, and on Monday the high court granted that request. Georgia providers have resumed practicing under the 6-week ban.
California Sues Hospital for Failing to Provide Care: California Attorney General Rob Bonta filed a lawsuit against a Catholic hospital challenging their alleged refusal to provide emergency abortion care to a woman whose water broke at 14 weeks. Although her pregnancy was nonviable, and the doctors confirmed that the twin fetuses would not survive, the hospital would not provide care based on an apparent policy of not performing abortions when there is detectable fetal cardiac activity. The woman was sent away with a bucket of towels for the car ride, and she subsequently hemorrhaged before receiving care at another hospital in the area. A.G. Bonta alleges that the hospital’s actions amount to discrimination against pregnant patients and violate state law requiring hospitals to provide emergency care. He is seeking a court order requiring the hospital to cease denying medically necessary abortions.
Although several individual women have filed lawsuits against hospitals based on their failure to provide emergency care, this case appears to be the first time that a state has taken a hospital to court. It is also a reminder that even in states like California where abortion is legal and protected, dangerous barriers to accessing care still exist.
Louisiana Classifies Abortion Medications as Controlled Substances: Louisiana’s classification of common medication abortion drugs mifepristone and misoprostol as controlled substances took effect on October 1st. Doctors have warned about the consequences for patient care of classifying these substances in the same category as drugs like Valium and Xanax. In many cases, drugs like misoprostol need to be immediately available for miscarriage care or to treat acute conditions like postpartum hemorrhage. However, once a medication is classified as a controlled substance, it must be locked away in a specific location, requiring specific procedures for access, and a distinct patient order. In response to the reclassification, doctors have described running drills to see how long it will now take to get the medications to patients who need them.
Abortion is already banned in Louisiana, and these drugs do not carry a risk of abuse or dependency; their classification is a purely political move designed to make easier the criminalization of abortion seekers and those who might help them. Although anti-abortion activists tout these kinds of policies as pro-life, the medical reality is that locking these drugs away makes pregnant patients less safe in a clinical setting and erects unnecessary barriers to standard reproductive health care.
Supreme Court Allows Texas to Block Emergency Abortions: The Supreme Court has declined to hear a Texas case about how federal requirements for emergency care intersect with the state’s total abortion ban. After the Dobbs decision overturned Roe, the Biden Administration issued guidance advising that hospitals must continue to provide emergency stabilizing care consistent with the Emergency Medical Treatment and Active Labor Act (EMTALA), including abortion care if that is what is medically indicated, regardless of state abortion bans. Texas responded by filing a lawsuit arguing that the Administration’s guidance was improper. The lower courts agreed. The Fifth Circuit wrote that EMTALA does not govern the practice of medicine and does not require pregnancy termination. The Court went further by opining that EMTALA imposes “equal stabilization obligations” to both the mother and the fetus, putting doctors in the position of choosing whose care to prioritize while failing to understand the reality that fetal care depends on maternal care.
This case is extremely similar to Moyle v. United States, a case out of Idaho that the Supreme Court dismissed without considering the merits of the issue months ago. In declining to take the case out of Texas, the Court has once again passed on an opportunity to answer the urgent question of whether patients have a federal right to abortion in emergency life-endangering circumstances. The court’s failure to answer this question is an abdication of its duty and places the lives of pregnant people in ban states in jeopardy.
The Supreme Court Declines to Hear Abortion Case out of Guam: The U.S. Supreme Court has declined to hear a case aimed at overturning abortion rights in Guam. The case, brought by Attorney General Douglas Moylan, asked the Court to overturn a Guam Supreme Court ruling finding that a 1990 total abortion ban has been repealed by the Guam legislature. In other words, A.G. Moylan sought to reinstate the abortion ban, and the Supreme Court’s refusal to hear the case means that the 1990 abortion ban remains blocked. Guam attorney Anita Arriola responded with a statement that A.G. Moylan’s appeal to the Supreme Court was a “vain bid” to “further his own agenda at the expense of the people of Guam,” and that it demonstrated “how far he is willing to go to strip Guamamians of their rights and freedoms.”
Texas Attorney General Sues City of Austin: Texas Attorney General Ken Paxton has brought a lawsuit against the city of Austin based on its budget allocation of $400,000 for supporting reproductive health by reimbursing individuals who are forced to travel out of state. Although traveling to obtain legal abortion care is entirely lawful, A.G. Paxton argues in the lawsuit that the funds are improper as they do not serve the public interest. Mayor Kirk Watson responded with a statement that “Ken Paxton is once again exploiting the great power of his office to attack and undermine the fundamental rights of women to try and score a few political points in the process.”
Ballot Initiatives:
Fundraising for Abortion Ballot Measures: Data shows that abortion-rights ballot measures nationwide have raised almost 8 times as much as anti-abortion groups. However, whether this spending will translate into success on election day remains to be seen. Uncertainty is particularly high in Florida, where a 60% passage rate is required for the amendment to succeed. With only weeks left until election day, it is more important than ever that we collectively work to educate, advocate, and organize in our communities about the importance of access to comprehensive reproductive health care.
Florida Department of Health Interferes with Ballot Initiative: The Florida Department of Health has sent a cease and desist letter to a local TV station over an ad promoting the abortion rights ballot initiative that will appear before voters in November. The ad depicts a Florida woman telling the story of how she was diagnosed with a brain tumor while pregnant and needed an abortion in order to save her life. The state’s cease and desist letter threatens criminal charges and argues that the ad is misleading in its implication that the state’s abortion ban places pregnant people’s lives and health in jeopardy. This latest attempt by the Florida government to block Amendment 4 comes on the heels of reporting about police officers going to people’s homes to inquire about the validity of their signatures in favor of the amendment petition.
Trend & Policy Watch:
North Carolina Election: Abortion rights advocates in North Carolina are hopeful that this year’s election will yield down-ballot votes for democratic candidates supportive of abortion rights. Currently, Republicans hold a supermajority capable of overriding Democratic Governor Roy Cooper’s veto. If the makeup of the legislature remains the same, it is likely that more abortion restrictions will be passed into law during next year’s legislative session.
Maternal Healthcare and Extreme Heat: Rising heat levels induced by climate change are worsening maternal health conditions and outcomes in the U.S., particularly for black women. Extreme heat increases the risks of pregnancy complications, including hypertension and cardiovascular conditions, and maternal mortality. As climate change worsens, it will compound pre-existing inequities in related areas like public health, a reality that lawmakers attempting to craft solutions must contend with.
Idaho and Gender-Affirming Care: Idaho Attorney General Raul Labrador has announced that he is investigating the American Academy of Pediatricians in relation to gender-affirming care for minors. In the letter, he argues that providers should not be permitted to recommend gender-affirming care to the parents of trans children, arguing that such care amounts to “medical experimentation on children.” This position contradicts vast medical consensus demonstrating the safety and efficacy of gender-affirming care for gender-diverse individuals.
Military Readiness and Anti-LGBTQ+ Policies: House Democrats argue that provisions relating to LGBTQ+ service members and their dependents should be removed from Congress’s annual defense bill. The provisions include restrictions on gender-affirming care, pride flags, drag performances, and educational materials that depict gender non-conforming individuals. Opponents of these provisions argue that they are discriminatory, entirely unnecessary, and detract from military readiness and retention by forcing service members to worry about their health, their families, and their safety rather than focusing on their jobs.
Anti-Abortion Researchers Sue Over Retraction: Anti-abortion researchers whose studies were heavily relied upon in the lawsuit attempting to revoke the FDA’s approval of mifepristone have sued academic publisher Sage for retracting several of the studies. The studies purported to show that mifepristone is not safe for use in medication abortion. However, Sage based its retractions on discovery of serious methodological flaws and undisclosed conflicts of interest, such that the authors’ conclusions were rendered unreliable. The researchers allege that they have suffered severe reputational damage as a result and ask Sage to come to the arbitration table and rescind the retractions. They are represented by Alliance Defending Freedom (the group behind the lawsuit challenging the FDA’s approval of mifepristone) and conservative law firm Consovoy McCarthy.
Texas OB-GYNs Considering Leaving the State: A new report from Manatt Health details how the state’s total abortion ban is impacting reproductive healthcare providers. A majority of OB-GYNs do not feel that they can provide the highest-quality care to pregnant patients under the current law, and 1 in 5 has considered leaving the state. Providers have been leaving ban states across the country, and medical students are less likely to matriculate to those states, worsening healthcare deserts and provider shortages. Research indicates that abortion bans are causing significant professional stress as doctors fear legal repercussions for providing standard care.
U.S. Supreme Court’s New Term:The U.S. Supreme Court began its term this week. For a rundown of important cases before the Court in the coming months, including a case that will determine the future of gender-affirming care and the reach of Dobbs, read here.