Developments in Abortion, Autonomy, and Access:
This week’s Digest walks through major decisions from the U.S. Supreme Court, including a decision undercutting Medicaid patients’ right to choose their provider, two religion-based cases involving reproductive freedom, and the much-anticipated Skrmetti decision. We also discuss litigation developments before the lower federal courts and in the states. Finally, we take a brief look at the current policy landscape for reproductive health, nearly three years after the Dobbs decision. As always, 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 comes from the New York Times and details a day in the life of an abortion provider who prescribes medication in ban states under Delaware and New York’s shield laws. The piece offers an intimate and compassionate perspective on what it entails to take on significant personal and professional risks in order to continue providing care. It also illustrates how shield law providers act as a lifeline for pregnant people from all walks of life, including those who identify as pro-life but find themselves in need of care. In a Digest issue full of bad news and challenging Supreme Court decisions, I found it valuable to read the perspective of one of the many steadfast advocates who continue to show up and do the work every day.
Legislation & Litigation:
Overview:
The Supreme Court has issued its decision in U.S. v. Skrmetti, finding that Tennessee’s ban on gender-affirming care for minors does not violate the equal protection clause of the Fourteenth Amendment;
The Supreme Court issued a ruling in Medina v. Planned Parenthood South Atlantic finding that patients do not have a right to sue to enforce Medicaid’s any qualified provider provision;
A federal judge has struck down the 2024 HIPAA reproductive health care privacy rule;
The Supreme Court waded back into abortion waters in two religion-based cases; it sided with the religious entities in both instances;
A federal judge has issued an order siding with trans rights in a case involving the Trump Administration’s attempts to ban trans people from obtaining passports consistent with their gender identity;
Louisiana Legislators have once again declined to add an exception for rape or incest to the state’s total abortion ban; and
Arizona’s Attorney General has indicated that the state will not defend remaining abortion restrictions in light of the new constitutional amendment protecting pre-viability care.
The U.S. Supreme Court Determines that Tennessee’s Ban on Gender-Affirming Care for Minors Does not Violate the Equal Protection Clause:
On June 18th, the Supreme Court handed down its much-anticipated decision in United States v. Skrmetti. The Court was asked to rule on the question of whether Tennessee’s ban on gender-affirming care for minors violates the equal protection clause of the Fourteenth Amendment by discriminating on the basis of sex and transgender status. In a 6-3 decision authored by Chief Justice John Roberts, the Court allowed the law to stand, holding that it did not merit heightened scrutiny because it merely discriminated on the non-protected bases of age and ‘medical use.’ The law in question, SB1, prohibits the provision of gender-affirming care to minors in order to treat gender dysphoria, while explicitly allowing identical treatments for cisgender minors to treat any number of conditions. For example, a person assigned female at birth who seeks hormone therapy to stop unwanted growth of facial hair would be legally permitted to access that care, while a minor assigned male at birth would not be able to do so in order to treat gender dysphoria. In other words, the patient’s sex assigned at birth is precisely what determines whether or not they are able to access care. The Court went out of its way to avoid this obvious reality, reasoning instead that the law merely discriminates on the sex-neutral basis of medical use by allowing hormone therapy and puberty blockers to treat certain conditions, while prohibiting it for others. The flaw in this logic is, of course, that the factor determining the underlying medical use is based entirely on the patient’s sex and gender identity.
Although the Court’s ruling was cabined to Tennessee’s law, it is likely to have significant implications for the 27 states that have enacted similar gender-affirming care bans. The majority’s reasoning could also be extended to restrict adult access to care by arguing that such a ban is based only on medical diagnosis and not on sex or any other protected classification warranting heightened scrutiny. And, by weakening the standards for what is considered sex-based discrimination, the Court’s decision could have ramifications for challenges to any law involving distinctions on the basis of sex, including in the abortion and reproductive rights contexts. As Justice Sotomayor articulated in her dissent, the court's finding “invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.”
Although a devastating blow, the Court stopped short of issuing a sweeping declaration that discrimination on the basis of transgender status is per se constitutional and left undisturbed other important precedents protecting trans rights. Legal strategies remain available to continue challenging discriminatory laws, and the advocates in the case have indicated that they fully intend to pursue them.
The Supreme Court Rules that Medicaid Patients Cannot Sue to Enforce Their Right to See Any Qualified Provider:
Today, the Supreme Court issued a 6-3 ruling in Medina v. Planned Parenthood South Atlantic (PPSAT), finding that Medicaid patients cannot sue to enforce their right to see any qualified healthcare provider. The case originated from South Carolina Governor Henry McMaster’s 2018 directive that state Medicaid funds should not go to Planned Parenthood, based on PPSAT’s provision of abortion care. The case before SCOTUS focused on the technical legal question of whether the Medicaid provision at issue, which allows patients to receive care from any clinician qualified to provide it, is enforceable by individual patients. The Court ruled in the negative, opening the doors for anti-abortion states to strip funding from Planned Parenthood and other reproductive health entities without accountability to the patients who rely on those clinics’ services. As Justice Jackson wrote powerfully in her dissent, “Today’s decision is likely to result in tangible harm to real people[;] [a]t a minimum, it will deprive Medicaid recipients in South Carolina of their only meaningful way of enforcing a right that Congress has expressly granted to them. And, more concretely, it will strip those South Carolinians – and countless other Medicaid recipients around the country – of a deeply personal freedom: the ‘ability to decide who treats us at our most vulnerable.’
Federal Judge Strikes Down HIPAA Reproductive Healthcare Privacy Rule
Northern District of Texas Judge Matthew Kacsmaryk issued a ruling last week striking down a Biden-era HIPAA privacy rule protecting reproductive healthcare information. The Rule was enacted post-Dobbs in response to rising threats of investigation and criminalization of reproductive health care and gender-affirming care. It protected only against the disclosure of patient information related to the provision or receipt of lawful healthcare, while creating exceptions for functions like public health or law enforcement investigations into unlawful practices. However, Judge Kacsmaryk – notorious for his anti-abortion rulings – issued a nationwide order striking down the Rule on the grounds that the Department of Health and Human Services exceeded its authority in creating special protections for reproductive healthcare. It is not yet clear whether HHS will attempt to appeal the ruling.
The Supreme Court Weighs in on Abortion and Religious Liberty Once Again:
The U.S. Supreme Court took two actions relating to abortion rights last week, siding with religious groups in both cases. First, the Court agreed to hear First Choice Women’s Resource Centers v. Platkin, a New Jersey case involving a state investigation into a crisis pregnancy center. The case was brought by the Alliance Defending Freedom, a prominent right-wing group involved in anti-abortion litigation around the country. In the suit, the New Jersey Attorney General subpoenaed the centers as a part of an investigation into whether they had violated consumer protection laws by misleading donors and patients about their services. The Court agreed to take the case on the question of whether the plaintiff centers must proceed in state court prior to bringing their First Amendment action before a federal court.
The Court’s second action involved sending a case back to the New York Court of Appeals for reconsideration of whether the state’s employer-provided insurance plan coverage requirements unconstitutionally violated the plaintiffs’ religious beliefs. The requirements in question mandate coverage for medically necessary abortions and include religious exemptions; however, the plaintiffs argued that those exemptions were too narrow. Although the New York Court of Appeals ruled against the plaintiffs, the Supreme Court is requiring it to reconsider that ruling in light of a recent decision about tax exemptions for religious employers. In both of these cases, the Supreme Court issued rulings favorable to the religious entities, strengthening the legal theory that assertions of religious objection to abortion can trump state laws protecting access to care.
Federal Judge Sides with Trans Plaintiffs in Case Involving Gender Identity and Passports:
Despite the Skrmetti ruling, many federal courts are continuing to rule against the Administration’s attempts to aggressively limit the rights of transgender and gender-diverse people. Last Tuesday, the federal district court over Massachusetts issued a ruling blocking the Trump Administration’s changes in passport policy. Previously, the State Department allowed passport holders to select the gender marker that aligns with their gender identity, and permitted an “X” indicator for intersex, nonbinary, and gender non-conforming individuals. However, in January, the federal administration issued an executive order requiring individuals to only have documentation that reflects their sex assigned at birth, even in cases where the person’s legal documentation has been changed to accurately reflect their gender identity. In April, the Massachusetts District Court issued a preliminary injunction as to the six individual plaintiffs in the case. This week, that injunction was expanded to all persons impacted by the administration’s policy change. This means that individuals can, at least for the time being, apply for and renew travel documentation that is consistent with their gender identity.
This ruling comes as other federal courts have similarly ruled against the Trump Administration's discriminatory policies against the LGBTQ+ community. Earlier this month, a federal judge for the D.C. District Court issued an order finding that the Bureau of Prisons must continue to provide gender-affirming care to incarcerated individuals. And, two weeks ago, a California federal court ruled against the Administration’s revocation of federal funding for groups providing critical support to the LGBTQ+ community. The Court explicitly called out the Administration’s open animus towards the rights of gender-diverse people in making its ruling.
Louisiana Legislators Decline to Add an Exception for Rape or Incest to the State’s Abortion Ban:
For the third year in a row, Louisiana lawmakers have declined to add any exceptions for rape or incest to the state’s total abortion ban. The proposed legislation would have created a limited exception to allow minors under the age of 17 to access care if they became pregnant following an assault. The debate over the measure was significantly focused on the religious beliefs of the legislators involved, with one Democratic representative citing her Christian beliefs as a reason why she could not approve adding the exception. Louisiana’s law will continue to include a total ban with exceptions only for the life or health of the pregnant person or in certain cases of grave fetal abnormalities.
Arizona Attorney General Will Not Defend Laws Restricting Abortion Care:
As we reported in our last Digest, advocates in Arizona have brought challenges to abortion restrictions that remain on the books following the state’s passage of an abortion rights ballot measure. The restrictions at issue include 1) a prohibition on abortion because of nonfatal genetic conditions; 2) a requirement that a patient receive an ultrasound 24 hours prior to an abortion; and 3) a ban on telehealth abortion care, including for medication abortion. In a piece of good news, Arizona Attorney General Kris Mayes has indicated that the state will not defend the laws, citing her determination that they run afoul of the newly added constitutional protections.
Trend and Policy Watch:
New Data Finds Abortion Bans are Extremely Costly:
Three years after the Dobbs decision overturned Roe, we are starting to get a clear picture of the consequences of widespread abortion bans and restrictions, including the financial consequences. New analysis from the Institute for Women’s Policy Research has found that the “16 states with the most restrictive abortion policies cost the US economy more than $64 billion annually.” And, when “factoring in state-level policies that impose significant barriers, such as mandatory waiting periods and medically unnecessary restrictions on providers…the annual economic toll rises to over $133 billion.”
Republican Lawmakers Have Asked the EPA to Investigate Mifepristone’s Effect on Water Safety:
A group of Congressional Republicans has asked the EPA to investigate whether mifepristone, a drug commonly used for medication abortions, is contaminating the water supply. The lawmakers issued a letter in which they point to unfounded concerns about potential effects that the “byproducts” of mifepristone could have on fertility and the safety of drinking water. As Abortion Every Day’s Jessica Valenti explains, this is not a new anti-abortion strategy. Students for Life has been championing the idea that medication abortion harms the water supply for years, and its Vice President for Policy testified to Texas legislators last month that we “are all drinking other people’s abortions.”
The UK Parliament Has Voted to Decriminalize Abortion:
In a significant victory for international abortion rights, the U.K. Parliament has voted to decriminalize all abortions, meaning that women cannot face arrest or prosecution for their pregnancy outcomes, regardless of the gestational age of their pregnancy. The vote was 379 to 137. One author of an amendment to the new law, MP Tonia Antoniazzi, explained that the decriminalization efforts are “about recognizing that these women need care and support, and not criminalization.”
Abortion Is Still On the Rise, 3 Years After Dobbs:
WeCount’s newly released data shows that, despite the enactment of state-level abortion bans post-Dobbs, abortions have continued to rise in the past two years. According to the research, although the majority of abortions continue to take place in person, telehealth abortions have been steadily increasing, likely a significant contributing factor to the rising numbers. Additionally, protective states’ shield laws have allowed those residing in abortion ban states to continue to access care both in person and via telehealth.