Developments in Abortion, Autonomy, and Access:
This week’s Reproductive Health Digest goes through litigation developments out of South Carolina, Florida, Missouri, and Michigan. We also walk through legislation out of Georgia and Texas, Missouri’s ongoing efforts to reverse the abortion rights ballot measure passed by voters last year, and Louisiana’s second case against a New York shield provider. Finally, we outline major reproductive healthcare news and policy developments at the federal and state levels, including a sweeping attempt to defund abortion and gender-affirming care. 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 from ProPublica underscores the critical role that institutional support for clinician decision-making plays in patient outcomes. ProPublica’s analysis of post-abortion ban sepsis rates in Texas found that, despite rates skyrocketing statewide, the numbers differed drastically between Houston and Dallas. The key difference appears to be that Dallas hospitals and institutions have taken an active role in creating workable protocols and supporting their physicians in providing emergency abortion care, while Houston hospitals have taken a far more conservative approach to pregnancy terminations.
Legislation & Litigation:
Overview:
The South Carolina Supreme Court has issued a ruling finding that the state’s ban on abortion after detection of fetal cardiac activity applies around the 6-week mark;
Missouri Lawmakers passed a resolution that will ask voters to undo the abortion rights constitutional amendment that they passed via citizen-led ballot measure last November;
A Florida court has found that the state’s judicial bypass law–the legal process by which a minor can seek a court’s permission to obtain an abortion–unconstitutionally infringes upon the rights of Florida parents;
Georgia Governor Brian Kemp has signed a bill banning state funding from going to support gender-affirming care for trans inmates;
A Missouri Court has ruled that Planned Parenthood must turn over de-identified patient records relating to the provision of gender-affirming care;
A Michigan Court has struck down certain medically unnecessary barriers to care, including a 24-hour waiting period, restrictions on who can perform abortions, and biased counseling requirements;
Louisiana has opened up a second case into New York shield provider Dr. Margaret Carpenter;
SB 31, a Texas bill purporting to clarify the state’s abortion ban, has passed another critical hurdle; and
A federal court has struck down Pregnant Workers Fairness Act workplace protections for abortion patients.
The South Carolina Supreme Court Upholds the State’s “Heartbeat” Ban at 6-weeks:
The South Carolina Supreme Court has issued a ruling finding that the state’s ban on abortion after detection of fetal cardiac activity applies around 6-weeks gestational age. Planned Parenthood argued that, because the chambers of the fetal heart have not formed by 6 weeks, the law’s use of the phrase “repetitive rhythmic contraction of the fetal heart” means that abortion must be permitted until closer to 9 weeks, when the fetal heart comes together and rhythmic contraction begins. While the court acknowledged the medically ambiguous nature of the law’s phrasing, it turned to the legislative record and found that both sides appeared to clearly understand and represent that the heartbeat bill was functionally a 6-week abortion ban at the time of its original consideration by the general assembly. South Carolina’s ban will remain unchanged for the time being.
Missouri Lawmakers Ask Voters to Undo Abortion Protections:
Missouri lawmakers continue to push to repeal the state’s new abortion rights constitutional amendment. This week, the Missouri Senate used a rare mechanism to end a Democrat-led filibuster and force a vote on House Joint Resolution 73, which will ask voters to once again ban most abortions in the state. The Resolution comes mere months after Missouri voters soundly passed a constitutional amendment protecting pre-viability abortion rights and overturning a total abortion ban. The secondary measure will either appear on the 2026 ballot or go before voters via special election.
Missouri lawmakers’ attempts to turn back the clock on the 2024 amendment have been broadly criticized as an anti-democratic attempt to supersede the will of the people. Senate Minority Leader Doug Beck criticized the Resolution, stating that “24 Republican Senators decided that they think what’s best for Missourians” over Missourians own votes on the issue.
Florida Court Invalidates Judicial Bypass for Minors:
Florida’s Fifth District Court of Appeals issued an opinion last week finding that the state’s judicial bypass procedures unconstitutionally violate parental rights. States that require parental involvement for a minor to access abortion care also have procedures in place for judicial bypass–the process by which a minor can petition the court for permission to get an abortion without parental consent or notification. Judicial bypass is often utilized in cases where the minor cannot safely involve a parent or guardian. It has been an established norm since the U.S. Supreme Court determined in 1979 that the rights of parents must be balanced against the constitutional right of pregnant people to access abortion, and therefore states that mandate parental involvement must also provide an alternative avenue to care.
The Florida court in the present case found, however, that judicial bypass procedures–with the exception of those in place for victims of abuse–violate parents’ rights to make decisions about their children’s care. The opinion cited Dobbs to repudiate the idea that minors retain any independent right to access abortion care. The court invited the Florida Supreme Court to review its decision, where it will face a panel of justices hostile to abortion rights. The outcome of this case will likely create a strategic blueprint for other abortion-hostile states that are seeking to limit minors’ ability to access care.
Georgia Governor Brian Kemp has Signed a Bill Banning Gender-Affirming Care for Trans Inmates:
Georgia Governor Brian Kemp has signed a law prohibiting the use of state funds for gender-affirming care for transgender inmates. SB 185, the bill in question, is discriminatory on its face. It explicitly allows identical treatment to be delivered to inmates for reasons other than gender dysphoria, including intersex inmates or inmates who are de-transitioning. The population of transgender inmates in Georgia prisons is exceedingly small, and removing their ability to access care subjects them to unnecessary harm and suffering while providing little to no benefit to the state. In response to the bill, Minority Caucus Chair Tanya Miller stated “[y]ou are wasting our time – better still, wasting the taxpayers’ money . . . solving problems that no one asked you for, that do not in fact exist.”
A Missouri Court has Ruled that Planned Parenthood Must Turn Over Patient Records Related to Gender-Affirming Care:
Attacks on the rights and privacy of trans people continue in Missouri, where a court has ruled that Planned Parenthood must turn over documents relating to gender-affirming care to the Attorney General’s office. Attorney General Andrew Bailey is purportedly seeking these records from Planned Parenthood and other providers as a part of an investigation into whether the provision of gender-affirming care in the state violates consumer protection laws. His office is alleging that clinics in the state may have engaged in “deception, fraud, false promises, misrepresentation, unfair practices, and/or the concealment, suppression or omission of material facts.” Planned Parenthood has declined to turn over patient records, arguing that this is a violation of patient privacy law and an improper use of consumer protection laws. Judge Rebeca Navarro-Mckelvey disagreed, finding that the investigation may proceed and Planned Parenthood can turn over de-identified records without violating HIPAA’s privacy protections.
A Michigan Court Has Struck Down the State’s 24-hour Waiting Requirement:
In 2022, Michigan became one of the first states to enshrine abortion rights into its constitution. The Reproductive Freedom for All Amendment (RFFA) prohibits the state from infringing upon or burdening the right to pre-viability abortion; however, it did not automatically unwind other restrictions on care that remain on the books. Advocates have brought those remaining challenges before the courts. Last week, in a win for reproductive freedom, a Michigan court struck down a 24-hour waiting period, as well as biased counseling requirements and a prohibition on advanced practice providers, like nurse practitioners and physicians assistants, providing abortion care. Judge Sima Patel found that the provisions infringed upon or burdened the right to access reproductive healthcare in violation of the RFFA. Judge Patel allowed a provision requiring screening for signs of coercion to remain in place.
Louisiana Opens a Second Case Against New York Shield Provider:
Louisiana Attorney General Liz Murrill is leading a second investigation into New York shield provider Margaret Carpenter, based on her alleged provision of abortion pills to a woman in Shreveport. To date, New York has refused to comply with cases brought against Dr. Carpenter by both Louisiana and Texas, citing its shield law’s protections from out-of-state investigations and extradition requests. These cases are currently in their early stages, but they will eventually lead to the first real test of whether shield laws can withstand judicial scrutiny. The Trump Administration has seemingly indicated its willingness to side with and potentially assist anti-abortion states.
Texas Abortion Clarification Bill Progresses:
A controversial bill purporting to clarify Texas’s abortion ban has cleared another hurdle. It now only faces one more procedural vote before it will go to Governor Abbott, who has indicated his support for the measure. SB 31 does not expand access to care in the state or establish new exceptions; instead, it removes the words “life-threatening” from the current language of the life or health exception and states that an emergency does not need to be imminent or irreversible in order for a doctor to intervene. The bill had drawn criticism from both sides, with anti-abortion lawmakers raising concerns that it would give doctors a free pass to perform abortions, and pro-choice advocates arguing that it fails to meaningfully provide relief from the current ban’s deficiencies.
Federal Court Strikes Down Workplace Accommodations for Abortion Patients:
On Wednesday, a federal judge issued an order striking down the Biden Administration’s rule applying the Pregnant Workers Fairness Act to employees needing abortions. The rule did not require employers to provide paid leave or other direct support; it merely required employers to provide unpaid leave unless doing so would constitute undue hardship. Wednesday’s Order found that the EEOC exceeded its statutory authority in promulgating the rule.
Trend and Policy Watch:
House-Passed Reconciliation Bill Drastically Expands Efforts to Defund Abortion and Gender-Affirming Care.
Anti-abortion and anti-trans rights lawmakers have long been engaged in state and federal-level efforts to defund Planned Parenthood and other prominent care providers. But on Thursday, the House passed a reconciliation bill that includes a stunning escalation of these efforts. At the final hour, two provisions were added that would not only ban federal funding for minors, but would, as reported by Mother Jones, “ban Affordable Care Act health care plans from covering abortion and gender-affirming care for all Medicaid patients, including adults.” If passed, this reconciliation bill will effectuate the largest cuts to Medicaid in American history, depriving millions of people of essential care and effectively codifying a backdoor abortion ban for large swaths of the population. Experts report that initial proposals to ‘defund Planned Parenthood’ using the federal budget would cost taxpayers over $300 million. And, because the Hyde Amendment already blocks federal funding from going to abortion, defunded services would include things like preventative care, STI testing and treatment, cancer screening, contraception, and prenatal care. The current version of the reconciliation bill cannot be allowed to pass, and it is incumbent on each of us to raise our voices and demand accountability from our lawmakers.
A Woman Being Kept on Life Support in Georgia Raises Ethical and Legal Questions:
As you have likely read in recent days, reports have come out that a brain dead Georgia woman’s body is being kept alive in an attempt to allow her pregnancy to continue until fetal viability. Although all of the details of the case are not known to the public, the circumstances raise serious questions around medical ethics, fetal personhood and the rights of pregnant people and their families to make medical decisions. Adriana Smith suffered brain death in February at around 8-weeks pregnant. However, Georgia’s abortion ban does not allow abortion after detection of fetal cardiac activity, and the fetus still had a heartbeat. The family reports that they were not given a choice in how to proceed after Ms. Smith’s death. The Georgia Attorney General has since released a statement saying that Georgia’s ban does not require a hospital to keep a brain dead patient on life support to sustain a pregnancy.
Secretary of Health and Human Services RFK Jr. Has Ordered a Review of the Safety of Mifepristone:
Secretary of Health and Human Services RFK Jr. has ordered Food and Drug Administration Commissioner Dr. Martin Makary to conduct a “complete review” of the safety of mifepristone. Despite decades of usage and over 100 scientific studies on the drug’s safety and efficacy, the Trump Administration appears to be ordering this review based on a recently released report from a right-wing group. This report purports to show that over 10% of women who take mifepristone suffer serious complications–a number far higher than the less than 1% of patients shown by credible data. However, the report has been broadly criticized for a lack of transparency and scientific rigor. Even the report’s own supporters have admitted its severe limitations; Dr. Christina Francis, CEO of the American Association of Pro-Life OBGYN’s stated that the report is “not a study in the traditional sense” and “not conclusive proof of anything.”