Developments in Abortion, Autonomy, and Access:
Today’s Digest is a bit shorter than usual, as the author is at a conference much of this week. However, as always, we strive to bring you the most important news on reproductive rights and bodily autonomy from around the country. This week’s edition goes through the latest attacks on the rights of transgender people, litigation developments at the state and federal levels, increasing concern around abortion surveillance, and proposed legislation out of Texas.
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Legislation & Litigation:
Overview:
Following the Supreme Court’s Skrmetti decision, federal courts for the 10th and 8th Circuit Courts of Appeals have issued rulings allowing states to enforce their bans on gender-affirming care for minors;
Tennessee has issued subpoenas to four medical groups, requesting records related to abortions provided in the state. Although the subpoenas arise out of a case challenging the scope of the state’s abortion ban, it raises alarms about abortion surveillance;
The Missouri Supreme Court has declined to review a lower court ruling enjoining certain abortion restrictions prior to the case moving through the appellate process;
An Indiana Appeals Court has ruled that the state can continue to enforce its total abortion ban without modification or expansion of its current exceptions and requirements; and
The Texas legislature appears poised to pass a law that would further expand liability around medication abortion and restrict access to care from out-of-state shield providers.
Federal Courts Rule that Oklahoma and Arkansas Can Enforce Their Bans on Gender-Affirming Care:
Both the 10th Circuit and the 8th Circuit Courts of Appeals have ruled to uphold state-level bans on gender-affirming care for minors in light of the Supreme Court’s Skrmetti decision. The states involved, Oklahoma and Arkansas, both passed laws banning gender-affirming care for minors, and in both cases, healthcare providers and the families of trangender minors sued on constitutional grounds. However, since the filing of those lawsuits, the U.S. Supreme Court issued its landmark decision in U.S. v. Skrmetti. In its order, the Court found that Tennessee’s ban on gender-affirming care for minors did not discriminate on the basis of sex or transgender status, but instead merely distinguished based on age and medical use. To date, over half of U.S. states have implemented bans on gender-affirming care, and we are likely to see more federal courts apply Skrmetti’s analysis to uphold those laws. Indeed, the Skrmetti decision has already had a significant precedential impact on many ongoing cases involving the rights of transgender people, creating a blueprint for states to lawfully discriminate.
Tennessee has Issued Subpoenas Requesting Records of Abortions Performed:
Tennessee has issued subpoenas to four medical groups seeking records and information about abortions performed in the state. The subpoenas are a part of a lawsuit brought by a group of women who were denied medically necessary care under the state’s total abortion ban. In requesting records related to the guidance that Tennessee providers use to determine if a patient is eligible for an abortion, Tennessee is likely seeking to establish a case that the law itself is not a problem as written, but instead, providers are simply failing to apply it properly. Although certain confidentiality and privacy protections are in place for the subpoenas, the investigation raises alarms around heightened government scrutiny into the individual actions of healthcare providers and the surveillance of patients’ care.
The Missouri Supreme Court Has Refused to Prematurely Review a Lower Court Ruling That Blocked Abortion Restrictions:
Since the passage of a ballot measure overturning Missouri’s total abortion ban last November, Missourians have been locked in a battle with the state to vindicate their now constitutionally-enshrined reproductive rights. Although the constitutional amendment technically protects abortion rights up until ‘viability,’ the state has repeatedly argued in favor of strict restrictions that make actually accessing care extremely difficult. Circuit Judge Jerri Zhang has repeatedly enjoined those restrictions. In response to Judge Zhang’s most recent ruling, Tennessee Attorney General Andrew Bailey requested that the Supreme Court take up the case directly, without it going through the normal appeals process. Last week, the court declined that request, finding that jurisdiction is proper in the appellate court. For now, abortion will remain available in the state.
An Indiana Appeals Court has Ruled to Uphold the State’s Abortion Ban:
An Indiana Appeals Court has ruled to uphold the state’s abortion ban without alteration. Plaintiffs argued that the law, which bans abortion at all gestational ages with extremely limited exceptions, was too narrow and placed patients at risk. However, the Court found that it did not violate the “life, liberty, and the pursuit of happiness” clause of the Indiana Constitution and affirmed that only certain extreme medical scenarios create a constitutional right to abortion. It also rejected a challenge to the law’s requirement that abortions be performed in a hospital or outpatient surgical center, reasoning that a constitutionally-protected abortion would almost always involve a circumstance where a patient would need to be in the hospital.
Texas Poised to Pass a Law Expanding Liability around Medication Abortion:
Texas appears poised to pass yet another law limiting and criminalizing abortion access. Although the state is already enforcing a total abortion ban, Senate Republicans have introduced a new bill, the “Women and Child Protection Act,” which would both expand civil liability for anyone involved in the manufacture, prescription, mailing, delivery, or distribution of abortion pills and permit wrongful death lawsuits related to the pregnant person or fetus within a 6-year statute of limitations. The law also takes aim at other states’ ‘shield laws,’ by declaring that they are not a defense to the statute’s prohibitions. Senator Brian Hughes, the sponsor of the bill, sought to cast it as an effort to protect women, stating his view that “moms are the victims here.” Texas’s latest attempted crackdown comes as more and more Americans are relying on medication abortion to access care.
Trend and Policy Watch
Trump Administration Moves to Block Health Insurance Coverage for Transgender Federal Employees:
The Trump Administration has reportedly taken actions to quietly remove coverage for gender-affirming care for adults from the programs that administer benefits to federal employees. Echoing the strategy of many state-level bans, the policy change specifically only applies to transgender people seeking care to treat gender dysphoria. It does not apply to other treatments that might require hormone therapy like cancer or certain reproductive conditions. The letter indicating the change also includes exceptions for ‘counseling services’ for gender dysphoria and requires carriers to create an exceptions process, to be applied case-by-case, for individuals who are mid-treatment. This latest move to strip adults of evidence-based care undercuts any assertions by the Administration that it is primarily concerned with impacts of gender-affirming care on minors.
Despite Campaign Promises, the Trump Administration Will Not Cover IVF Treatment:
The Federal Administration reportedly has no plans to cover IVF treatments, despite promises made on the campaign trail. In the run-up to last year’s presidential election, the Trump Campaign announced that “under the Trump administration, your government will pay for – or your insurance company will be mandated to pay for – all costs associated with IVF treatment.” Then-candidate Trump even referred to himself as “the father of IVF” during a Fox News town hall event. Despite these lofty promises, mandating coverage of IVF would require an act of Congress, and the Administration reportedly does not intend to ask Congress to draft or pass such legislation. However, as Rolling Stone points out, the White House does “plan to redirect funds from a long-standing federal program that helps low-income women access birth control and testing for [STIs]” and instead give those funds to an “‘infertility training center’ that promotes ‘holistic’ approaches to combatting infertility.”