Developments in Abortion, Autonomy, and Access:
In this week’s Digest, we cover the recent rulings from the Arizona and Florida state supreme courts, as well as litigation developments out of Indiana and Tennessee. We also take a look at reproductive rights politics on the national stage and legislative movement at the state level. Reproductive health law has changed quickly in the past two weeks, even by the current post-Dobbs standard. Please read on for the news that you need to know.
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This Week’s Must Read:
This week’s ‘Must Read’ comes from Ms. Magazine and takes a look at how American policy shapes and influences reproductive health equity on a global scale. Policies like the Mexico City Policy and the Helms Amendment that narrow access to reproductive health information and options have a negative impact on everything from abortion care to pregnancy outcomes and access to menstrual products in developing nations.
Legal Changes at the State Level:
Brief Overview:
Florida: Last week, the Florida Supreme Court issued two decisions relating to abortion. The first found that the state’s current 15-week abortion ban does not violate the Florida constitution’s privacy protections; this will allow Governor DeSantis’s previously passed 6-week ban to take effect 30 days from the ruling. The second decision found that an ongoing ballot initiative’s language was sufficiently clear to go on the November ballot.
National Election: This week, Republican presidential nominee Donald Trump announced his view that abortion regulation should be left to the states, declining to back a national abortion ban. However, the presidential hopeful would not need to explicitly pass a national ban in order to effectively end access. Instead, an anti-choice administration could instruct the DOJ and FDA to enforce policies that restrict access to medication abortion and make it virtually impossible to ship any materials needed to perform an abortion, potentially also impacting contraception. Although Trump has faced backlash from far-right anti-abortion groups and politicians for his failure to back a national ban, he has repeatedly touted the overturn of Roe as a key success of his administration, as recently as April 10th.
Arizona: The Arizona Supreme Court issued a ruling on Tuesday finding that an 1864 total abortion ban can be enforced. The Court stayed implementation of its decision for 14 days, and it is unclear what the ultimate impact will be as the state’s Democratic Attorney General immediately indicated that she will not prosecute cases brought under this law and the state’s Governor called for a repeal of the ban. At present, abortion is legal in the state until after 15 weeks gestational age.
Indiana: An Indiana Court of Appeals has upheld a lower court judgment blocking the state’s abortion ban in cases where it conflicts with a person’s sincerely held religious beliefs. Faith-based pro-choice arguments are a unique feature of post-Roe litigation, and the Indiana case may serve as a test case for other potential plaintiffs. The decision is likely to be appealed up to the State’s Supreme Court.
Deeper Legal Analysis
Florida:
Last week, the Florida Supreme Court issued two highly anticipated decisions relating to abortion access in the state. The first came in a case challenging the constitutionality of the state’s 15-week abortion ban, and the second addressed whether a proposed ballot initiative is sufficiently clear to go before voters in November.
At present, abortion is permitted in Florida until around 15 weeks gestational age, with exceptions for the life or health of the pregnant person or in certain cases of lethal fetal anomaly. However, last year Governor DeSantis signed into law a 6-week ban, with narrow exceptions for the life or health of the pregnant person or in cases of rape or incest until 15 weeks. This law was blocked while litigation over the constitutionality of the 15-week ban played out. Now that the court has ruled that the state constitution does not protect the right to abortion, the 6-week ban will take effect 30 days from that ruling.
The implementation of DeSantis’s 6-week ban further decimates reproductive health access in the South. Nearly all of Florida’s closest neighbors have enacted abortion bans far stricter than the currently enforced 15-week ban, and last year saw an influx of patients to the state. Now, patients closest access points will be Virginia or North Carolina, further burdening an already overburdened healthcare system. Since the Dobbs decision, the consequences of harsh abortion bans have been made evident with story after story of pregnant people failing to receive medically necessary abortions. The same will happen in Florida. Pregnant people in crisis will be forced to risk their lives and take extraordinary measures to travel long distances in order to receive medically standard care. This is likely to galvanize voters on the issue of abortion in November.
The second decision from the state’s high court relates to an ongoing ballot initiative effort that, if successful, would protect abortion in the state constitution until viability. The Court found that the language contained in the initiative was sufficiently clear to go before voters in November. The citizen-led ballot initiative has already collected enough signatures to qualify for the ballot, and the court’s decision clears another hurdle for it to move forward.
Despite finding that the initiative could move forward, the court’s majority, concurring and dissenting opinions gave alarming indications that the court is open to the idea of fetal personhood–or granting fetuses and embryos the same legal rights as any born person. The dissenting justices were more explicit, making clear that they would support recognizing a fetus as a natural person under the state constitution. This is a concerning signal that , even if the amendment passes in November, the justices may be willing to entertain an argument that it conflicts with the state constitution’s guarantee of the right to life. Justice Grosshans directly alluded to this, writing that “the voter may think this amendment results in settling this issue once and for all[;] it does not.”
While the court’s decision to allow the amendment to move forward is positive, it is also the bare minimum and the obviously correct conclusion. The court’s review in this case was extraordinarily narrow–the question asked was not a substantive one but was merely whether the language of the amendment put voters on fair notice of what they are voting for. The language of the amendment is clear and unambiguous. Whether the justices would allow it to move forward consistent with the state’s own democratic process should have never been in question.
Oklahoma:
The Oklahoma legislature has been extremely active in proposing anti-abortion bills this legislative session. Although it is not yet clear how many will pass and what their final language will be, the series of bills, taken together, could severely restrict access to abortion, contraception, and fertility treatments.
One bill, HB 3216, has raised concerns about access to both emergency contraceptives like Plan B and intrauterine devices (IUDs). The bill was introduced by Republican Rep. Kevin West, who crafted it with assistance from the Alliance Defending Freedom, the anti-abortion group behind the federal case challenging the legality of medication abortion. In its current form, the bill defines pregnancy as beginning at fertilization, rather than implantation, and would ban any form of contraception that may interfere with implantation. State Representative Trish Ranson expressed her concern that, if passed in its current form, the highly restrictive language of the bill would effectively ban IUDs and emergency contraception. When questioned about these concerns, Rep. West said that the bill was intended to target “over-the-counter items that are not always safe for everybody.” Notably, Plan B–the ‘morning after’ pill that anti-abortion groups falsely claim causes abortions–is an over-the-counter medication. The bill also includes strict reporting requirements for physicians, which have raised concerns about the creation of a statewide ‘database’ of pregnant people who have obtained an abortion.Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban.
In addition to proposing a trafficking law for medication abortion, Oklahoma is following Idaho’s lead in attempting to pass a so-called “abortion trafficking” law. SB 1778 uses broad language and targets anyone who would help a minor go out of state to obtain an abortion without the consent of their parent or guardian. This would mean that a trusted friend or relative would be charged with trafficking, regardless of the pregnant person’s own consent to the abortion and related travel.
As legislative sessions progress, it is critical to be mindful that although outright abortion bans may not be passing at the rate that they did in 2023, lawmakers are quietly introducing bills that radically restrict access to all aspects of reproductive care–Oklahoma is far from alone in this effort..
Arizona:
This week, the Arizona Supreme Court dealt another blow to abortion rights by handing down a decision finding that a civil war-era 1864 abortion ban is enforceable in the state.
At present, abortion is illegal in Arizona after 15 weeks gestational age, with exceptions for the life or health of the pregnant person. However, the highest court in the state has now functionally overridden the legislature’s clear intent in passing that law, ruling instead that, because of the overturn of Roe, a total abortion ban can be enforced. This ban, by its express language, does not include an exception for the health of the pregnant person–it only includes an exception to prevent their death. Providers found to be in violation of the law would face 2-5 years of prison time. As the court put it, “in light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.”
In purporting to parse state legislative intent, the Arizona Supreme Court upheld a law that was passed almost half a century before Arizona even became a state, and well before women had the right to vote (let alone participate in the legislative process). The idea that this reflects the present-day “legislature’s judgment” or the “will of [Arizona] citizens” is absurd on its face.
In its opinion, the court stayed the decision for 14 calendar days from the ruling to allow it to go back to the trial court for consideration of further questions. After that 14-day period, it will not go into effect for an additional 45 days, and once the decision takes effect, the question of enforcement remains unclear. Arizona’s democratic Governor Katie Hobbs immediately condemned the ruling and vowed to continue fighting for the rights of pregnant people in the state. Last year, Governor Hobbs issued an executive order giving the state’s attorney general sole discretion to prosecute abortion related cases. And Attorney General Kris Mayes, also a democrat, issued a statement calling the decision “unconscionable” and an “affront to freedom” and vowing that no pregnant person would face prosecution under this law as long as she remains the attorney general. The responses by Arizona’s leadership are a hopeful sign that the law will not be enforced for the time being; however, that can change if and when state administrations change.
The court's decision has stirred debate over whether the legislature should move to repeal the long-dormant ban. However, Republican legislators stymied attempts to do so the day after the decision, leading to a heated exchange with their democratic counterparts. It remains possible that the legislature will take action to repeal it at some point in the future.
In addition to a legislative solution, Arizonans will have the opportunity to directly vote on whether to enshrine abortion rights into the state constitution this November. Post-Dobbs, abortion has been a driving issue in elections across the country, and it is all but certain that this most recent decision will galvanize voters to support the amendment. In the meantime, clinics and providers will be forced to yet again decide whether they are willing to risk their career and their freedom in order to practice medicine and care for their patients.Indiana:
In Indiana, where a total abortion ban is currently in place, a Court of Appeals has upheld a lower court judgment blocking the ban in cases where it conflicts with a person’s sincerely held religious beliefs. The plaintiffs in this case are made up of Hoosier Jews for Choice, three individuals and one couple. They collectively argue that the state’s abortion ban violates the state Religious Freedom Restoration Act (RFRA) because it infringes on their ability to practice their sincerely held religious beliefs. Specifically, the plaintiffs argue that the belief that life begins at conception is not a universally held religious view and that their particular faiths mandate abortion under certain circumstances, such as if the pregnant person’s life or health is endangered.
The Court of Appeals sided with the plaintiffs on their argument that the right to obtain an abortion when religiously mandated is the kind of religious freedom protected under the state’s RFRA. It also decided important questions of standing in the plaintiffs favor. In recent abortion litigation, a great deal of judicial energy has been spent on the question of whether and when plaintiffs have the right to bring a lawsuit. In this case, the state argued that the plaintiffs do not have a right to sue because they are not currently pregnant, and therefore are not facing an imminent threat to their religious liberty. The court disagreed, finding instead that the plaintiffs have shown that they have altered their behavior out of fear of becoming pregnant and being forced to contend with the state’s abortion ban. The court also agreed to allow the case to proceed as a class action, broadening its potential impact. Although this decision is only precedential in Indiana, it sends an important message to potential claimants in other states who may face similar religious burdens based on their state’s abortion and health restrictions.
This case also has potentially important federal implications, as Indiana’s RFRA is all but identical to the federal RFRA. Although there can be no certainty of litigation outcomes, the Indiana court’s opinion arguably creates a framework by which other litigants could challenge their state’s abortion ban under federal law.
Faith-based pro-choice arguments are a unique post-Roe litigation strategy–and one that turns traditional abortion litigation on its head. The pro-life movement has typically claimed religion as its own, portraying abortion as antithetical to faith. However, this lawsuit challenges that notion, pointing to the myriad faith traditions, including Islam and Judaism, that hold moderate or permissive views on abortion and arguing that state law should not be governed by one narrow and highly subjective view of when life begins. We will continue to report on this case as it develops; the appeals courts’ decision is all but certain to be appealed up to the State’s supreme court.
What else is happening in access?
Last week, Tennessee heard oral arguments in a case challenging exceptions to the State’s abortion bans. This case was brought directly by seven pregnant people and two doctors who were harmed by the State’s restrictive laws. This case closely mirrors a similar patient-driven case that is ongoing in Texas. The Center for Reproductive Rights, who represents the plaintiffs in the Tennessee case, argues that the existing exception for medical necessity is too vague to be workable and forces providers to take on potential liability in order to treat their patients.
The Alabama legislature has proposed an abortion trafficking bill that would make it a crime to “aid or abet” a minor in leaving the state to obtain an abortion without parental consent. Alabama’s bill is the latest attempt to criminalize interstate travel for abortion care, joining the ranks of proposed legislation in Oklahoma, Tennessee and Mississippi. Idaho has already criminalized such “abortion trafficking.”
Iowa Attorney General Brenna Bird faced harsh criticism for her decision to stop state funding for emergency contraception for victims of sexual assault; at the time, she cited a state audit of state’s victim services programs. However, Iowa auditor Rob Sand has now stated that there is no formal audit going on regarding payment for emergency contraception. Removing access to emergency contraception is one form that attacks on contraception can take.
Following the passage of Issue 1, a constitutional amendment enshrining the right to abortion in the Ohio constitution, advocates have brought a lawsuit challenging remaining restrictions, including a 24-hour waiting period. The Plaintiffs argue that the requirements are now rendered unconstitutional.
A Texas woman is suing the Starr County DA after being wrongfully charged with murder for self-managing her abortion. Texas law does not permit murder charges to be brought against pregnant people who undergo an abortion, and the DA is accused of misleading jurors into formally charging the woman
New polling continues to show widespread support for access to medication abortion ahead of a Supreme Court decision that may limit that access.
Colorado is poised to enact a law that would protect lgbtq+ youth in foster care, standing in sharp contrast with other states who expressly allow children to be placed with unsupportive families.
Amidst the ongoing fight against fetal personhood laws, one potential impact has received little attention–end of life care for pregnant people. Although every U.S. state allows advance directives wherein a person can specify what kind of life support they would like to receive in the event of a catastrophic injury, over half of the states make exceptions in cases where the person is pregnant. Fetal personhood laws would add an additional complicating layer to this legal equation, potentially requiring a pregnant person to remain on life support against their own wishes and the wishes of their family in order to sustain a pregnancy.
President Biden has teamed up with Amanda Zurawski, a plaintiff in the case challenging the exceptions to Texas’s abortion ban, to launch a campaign ad highlighting his support for restoring some measure of reproductive freedom.
An Alabama woman was forced to travel out of state to obtain an abortion despite her fetus having multiple anomalies, including a heart defect and a massive tumor; although the first committee approved her abortion request easily, the second denied it based on a finding that each of the anomalies on their own was survivable, and it therefore did not meet the criteria for an abortion in the state.
A federal judge has dismissed a suit challenging a California shield law protecting trans people who come to the state for care; the judge found that the plaintiff failed to establish standing, as they could not show any way in which the law had injured them.