Developments in Abortion, Autonomy, and Access:
In this week’s Reproductive Health Digest, we discuss legislative developments in Texas, Missouri, and Nebraska, as well as litigation in both state and federal courts. We also report on new data on the numbers of abortions performed across the country and the impacts that federal funding freezes are having on Title X clinics. As always, please read on to the end for the news that you need to know.
Reproductive Rights and Health Equity News:
Legislation & Litigation:
Overview:
An Idaho judge has issued a limited ruling purporting to clarify the scope of the state’s abortion ban;
The status of abortion in Wyoming continues to shift, as a judge blocks restrictions on care, and the state supreme court considers the constitutionality of proposed bans;
Texas has proposed legislation to prohibit state funds from going to any entity or individual who provides practical support for abortion seekers;
The Trump Administration has sued Maine over the state’s refusal to exclude trans girls from girls sports teams;
Missouri lawmakers have advanced a proposed constitutional amendment that would repeal the abortion rights amendment passed by voters last year;
The parties to an Arizona challenge to a fetal personhood law have voluntarily dropped their suit;
The Nebraska legislature is advancing burial and cremation requirements for aborted fetuses;
Texas legislators want to test wastewater for birth control and abortion medication; and
A federal judge has ruled that a group of Catholic employers do not have to comply with certain federal protections for pregnant and LGBTQ+ workers.
Idaho Judge Issues Limited Ruling Allowing Emergency Abortions:
This week, an Idaho state court judge issued a ruling purporting to clarify the scope of the state’s abortion ban and its exception for the life of the patient. The Center for Reproductive Rights brought this lawsuit on behalf of four patients who were denied emergency abortions, two Idaho physicians and the Idaho Academy of Family Physicians. Collectively, the plaintiffs argue that Idaho’s abortion ban, which only permits abortion to save the patient’s life, violates Idaho’s Declaratory Judgment Act and the state’s constitutional guarantees of life, happiness and safety. In a limited ruling, state District Judge Jason Scott found that abortion is not prohibited if the patient’s pregnancy or health condition puts them at a “non-negligible risk of dying sooner without an abortion,” even if death is not imminent or assured.
The Status of Abortion in Wyoming Continues to be in Flux:
The legality of abortion in Wyoming continues to be in flux with legal fights playing out across multiple courts. As we previously reported, although abortion remains legal until viability, cumbersome state requirements have rendered it functionally unavailable. However, earlier this week, Wyoming’s only remaining abortion clinic resumed abortion care after a judge halted medically unnecessary laws requiring abortion clinics to be licensed as outpatient surgical centers and patients to have an ultrasound prior to obtaining medication abortion.
As care resumes in the state, the Wyoming Supreme Court is considering the constitutionality of two abortion bans that a state judge blocked in November of last year. The arguments in the case turn on whether a 2012 state constitutional amendment guaranteeing the right of individuals to make healthcare decisions encompasses the right to choose abortion. That amendment was passed in response to the Affordable Care Act. The Wyoming Supreme Court heard oral arguments in the case on April 16th; it will likely hand down its ruling within a few months.
Texas Attempts to Pass Further Restrictions on Funding for Logistical Support for Abortion:
The Texas Legislature is once again attempting to tighten the noose on abortion access both inside and outside of the state. Although abortion is banned and unavailable in Texas except in emergency cases, the state is attempting to pass a law that would expand the definitions of “abortion provider” and “abortion assistance entity” and block state funds from going to entities or individuals assisting with the logistics of out-of-state abortion access. Abortion assistance is defined expansively in the bill and would effectively encompass any and all practical support including travel, child care, counseling, lodging, or reimbursement for the cost of the abortion, regardless of where it takes place. The proposed legislation takes clear aim at abortion funds in the state, as well as other entities and individuals who would help pregnant Texans leave the state to obtain lawful care.
Trump Administration Sues Maine Over Inclusion of Transgender Girls in School Sports:
The Trump Administration is escalating its attack on trans rights with a lawsuit against Maine over the state’s inclusion of transgender girls in girls' sports. The Justice Department has asked the court to direct schools in the state to prohibit participation on girls' teams by minors who were not born female. The Administration argues that their inclusion violates Title IX’s anti-discrimination provisions. Maine officials disagree, contending that the Trump Administration’s position would force the state to violate its own human rights laws. In response to Maine’s refusal to comply with its demands, the Administration has threatened to pull funding for education in K-12 schools. It also attempted to freeze Department of Agriculture funds; however, that move has been blocked by a federal court.
Missouri Lawmakers Advance Proposed Amendment to Undo Recently-Passed Abortion Rights Amendment:
Last year, Missouri voters made history by being the first state to undo a total abortion ban via citizen-led ballot measure. However, undeterred by the clearly expressed will of the people, Missouri lawmakers are moving forward with a secondary proposed constitutional measure asking voters to repeal the first. House Resolution 2454 does not state at what gestational age abortion would be banned, but it does specify exceptions for cases of rape or incest prior to 12 weeks, fatal fetal anomalies and medical emergencies. Opponents of the Resolution argue that lawmakers are attempting to make an end-run around the outcome of last November’s election, but those supporting the bill insist that they are merely giving voters a second chance.
Arizona Parties Voluntarily Drop Lawsuit Against State Fetal Personhood Law:
Parties to an Arizona lawsuit challenging a fetal personhood measure have voluntarily dismissed the case. The contested law purported to give fetuses the same rights as Arizona residents; however, it never went into effect as a result of ongoing litigation. The parties agreed that the current challenge was rendered moot by the passage of an abortion rights ballot measure last November.
Nebraska Legislature Advances Burial Requirements for Aborted Fetuses:
The Nebraska Legislature is advancing LB632, a bill that would mandate certain burial and cremation requirements following an abortion. The bill would not apply to fetal remains resulting from a miscarriage or stillbirth. Proponents of the bill insist that it is about supporting the dignity of the fetus; however, critics argue that its true purpose and effect is to penalize the pregnant person and shame patients who seek abortion. The measure also raises concerns about heightened surveillance and criminalization of pregnant people and their providers.
Texas Legislators Want to Test Wastewater for Birth Control and Medication Abortion:
The Texas Senate has introduced a bill that would require wastewater testing for hormones found in abortion medication, gender-affirming care and hormonal birth control. Author of the bill Senator Bryan Hughes cited concerns about hormones leading to health risks and environmental contamination, a claim championed by anti-abortion group Students for Life. Health experts have found no credible evidence that mifepristone and other targeted medications are entering the water supply in high levels, and advocates point to the fact the lawmakers raise no similar concerns about far more commonly used medications like Tylenol and ibuprofen.
A Federal Judge Has Ruled that A Group of Catholic Employers Do Not Have to Comply with Certain Protections for Pregnant and LGBTQ+ Workers:
Federal Judge Daniel Traynor issued a ruling earlier this week finding that a group of Catholic employers do not have to comply with an updated Pregnant Workers Fairness Act Rule and Title VII guidance regarding discrimination on the basis of reproductive choices, gender identity and sexual orientation. The new Pregnant Workers Fairness Act rule requires reasonable accommodations for pregnant employees–including those seeking abortion or fertility treatments. It does not obligate employers to provide paid time off or other direct support for abortion seekers. But, it would require the employer to provide unpaid leave unless doing so would cause undue hardship. The challenged Title VII guidance bars workplace discrimination on the basis of a person’s gender identity or sexual orientation. The Diocese of Bismarck and the Catholic Benefits Association brought their lawsuit last August arguing that both of these provisions violate their beliefs about the Catholic Church’s teachings on reproductive rights and LGBTQ+ issues. Judge Traynor agreed, finding that the requirements substantially burden the Plaintiffs freedom of religion.
Trend & Policy Watch:
Center for Medicare and Medicaid Services Issues Guidance Directing States Not to Use Medicaid Funds for Gender-Affirming Care for Minors:
Continuing the Administration’s attack on trans rights and access to gender-affirming care, the Center for Medicare and Medicaid Services (CMS) has issued a letter urging states not to use medicaid funding for gender-affirming care for minors. Although Dr. Mehmet Oz, the Administrator for CMS, alleges that there is insufficient evidence to support the efficacy and safety of gender-affirming care, the treatment is supported by all major American medical associations.
Title X Clinics Are Beginning to Close Following Loss of Federal Funding:
Clinics are beginning to close their doors following the Trump Administration’s decision to freeze millions of dollars in Title X grant funding. The funding freeze targeted nine Planned Parenthood affiliates, and the Administration cited concerns about the group’s position on diversity, equity and inclusion–including statements stressing its “commitment to black communities.” Although the government purported to give the groups ten days to demonstrate compliance with anti-discrimination laws, the groups who responded within the deadline reported that they have received no new information. As a result of the funding freeze, countless patients will lose access to cost effective reproductive healthcare, including contraception, preventative care, and pregnancy testing.
Abortion Continues to Rise in the U.S.:
Data released by the Guttmacher Institute on April 15th shows a slight increase in abortions nationwide, with significant variability from state-to-state. The data also shows how abortion laws in one state impact other states in the region. For example, when abortion decreased in Florida after the state passed a 6-week ban, numbers spiked in Virginia, where abortion is permitted until about 26 weeks. The continued national rise in abortions is attributable in large part to individuals traveling to access care and the increased accessibility of medication abortion.