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.
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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.