Developments in Abortion, Autonomy, and Access:
Welcome back and Happy New Year from all of us here at L4GG–we hope that all of our readers had a restful and restorative holiday break. We know that the year before us brings a great deal of legal uncertainty, and we will be working hard to provide as much clarity as possible along the way. This week’s Digest covers some final 2024 developments and the latest news from the first two weeks of 2025. Below, we will discuss litigation developments out of Missouri, South Carolina, Indiana, Idaho, and New Mexico, proposed legislation filed in several abortion-restrictive states, and policy and data trends to watch as we begin a new year and new legislative sessions. Please read on to the end for the news that you need to know.
Want access to a detailed analysis of the abortion law in every U.S. state and territory? Please view our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.
Note: Last year, the “Abortion Laws by State” portion of our Policy Resource Hub was behind a login wall. We have since removed that login requirement, and the Hub is now fully open and available to the public at the above link.
This Week’s Must Read:
This week’s must-read comes from a late-2024 guide published by ProPublica. The guide outlines in practical terms what pregnant individuals, especially those in ban states, should know about access to miscarriage care. The guide was created in consultation with pregnant people impacted by abortion bans who shared what they wished they had known in order to advocate for themselves and their care.
Legislation & Litigation:
Overview:
Planned Parenthood in Missouri is fighting in court to block licensure laws preventing clinics from reopening;
The New Mexico Supreme Court has struck down local abortion bans;
The Texas Legislature has pre-filed several bills aimed at removing access to medication abortion;
An Indiana provider has filed a lawsuit challenging the state’s abortion reporting requirements;
Indiana is considering legislation tightening up its already strict abortion ban;
South Carolina providers have filed a religious freedom claim against the state’s abortion ban;
Virginia lawmakers are working to enshrine abortion rights into the state’s constitution; and
St. Luke’s in Idaho has filed a lawsuit challenging the state’s abortion ban under EMTALA.
Missouri’s Abortion Landscape Changes Post-Constitutional Amendment:
In the November election, Missourians voted to pass Amendment 3, a constitutional amendment enshrining pre-viability abortion rights into the state constitution. Immediately following passage, Planned Parenthood filed a lawsuit challenging the state’s total abortion ban and related care restrictions, arguing that they were rendered unconstitutional by the new Amendment.
On December 20, 2024, the court granted a preliminary injunction blocking the abortion ban and multiple restrictions, including biased counseling requirements, certain medication abortion restrictions, a mandatory waiting period, and the telemedicine ban. The Court stopped short of enjoining in-person reporting requirements, same-physician requirements, and physician-only requirements, which bar advanced practice clinicians like nurse practitioners from performing abortions. Importantly, the court also left in place licensure requirements for abortion-providing health centers, which mandate medically unnecessary compliance with standards similar to those for ambulatory surgical centers. These licensure requirements functionally block clinics from reopening and care from resuming in the state. Planned Parenthood has filed a motion asking the court to reconsider, arguing that the licensure requirements discriminate against abortion facilities and patients by imposing onerous restrictions that do not apply to any other medical facility or procedure.
New Mexico Rules Against Local Abortion Bans:
The New Mexico Supreme Court has ruled against local county and town ordinances that seek to ban the sending or receipt of abortion medications. Abortion is legal in New Mexico, and the state serves as a stronghold of access for pregnant patients fleeing abortion-ban states–most notably, Texas. Following the Dobbs decision, several counties along the New Mexico-Texas border passed local ordinances aimed at blocking abortion clinics from accessing or prescribing abortion medications through the mail, citing the 19th Century Comstock Act, a long-dormant vice law that prohibits the mailing of materials used for abortion. These localities were specifically concerned with patients crossing state lines from Texas to access care.
Last week, the New Mexico Supreme Court struck down the ordinances on the grounds that they violate the legislature’s authority over the regulation of reproductive health care; it did not reach the constitutional question in the case. Although counties and municipalities have a great deal of latitude to self-regulate, their regulations cannot openly violate state law. The Court found that legal schemes like the ones at issue in this case operate to punish conduct that is affirmatively and preemptively protected by state law.
Texas Legislature Proposes Bills Targeting Medication Abortion:
The Texas Legislature is considering a series of pre-filed bills aimed at eliminating access to medication abortion. Although abortion is banned throughout pregnancy in Texas, some patients have been able to obtain medication abortions through telehealth providers in shield states, or by self-managing their abortions with pills sourced from underground channels. Texas is now attempting to close those avenues to care.
The first of the proposed bills would make it a violation of deceptive trade practice laws to send abortion pills without a prescription from an in-state doctor and a prior in-person examination. Another takes aim at constitutionally protected speech by allowing private citizens to bring lawsuits against internet service providers in the state who host websites with information about how to obtain abortion pills. The third would reclassify mifepristone and misoprostol as controlled substances, making them far more difficult to access, even for non-abortion-related purposes. Louisiana passed a nearly identical reclassification bill last year, and the law has already created challenges for patients experiencing miscarriages and their providers. New Orleans has reportedly had to launch a new tool to help providers locate misoprostol and mifepristone following multiple reports of patients being unable to fill prescriptions necessary to manage medical events such as miscarriage, postpartum hemorrhage, and IUD insertion.
Indiana Provider Files a Lawsuit Challenging Reporting Requirements:
Indiana doctor Christina Scifres has filed a lawsuit challenging the state’s abortion reporting requirements as a violation of the federal HIPAA Reproductive Health Care Privacy Rule. Promulgated in response to Dobbs, the Rule prohibits the disclosure of patients’ reproductive health care information for the purpose of investigating the receipt or provision of lawful care. Dr. Scifres’ suit argues that the state’s reporting requirements are designed to ensure compliance with the state’s abortion restrictions and identify violations, and are therefore in conflict with the Rule’s federal privacy protections.
The HIPAA Reproductive Health Care Privacy Rule is currently being challenged in two separate lawsuits– one brought by the state of Texas, and the other by an individual Texas doctor. The Rule is at high risk of being modified or rescinded by the incoming Trump Administration.
Indiana Bill Would Further Restrict Access to Care:
A bill proposed in Indiana, where a total abortion ban is already in place, would further restrict access to care. If passed, it would outlaw the use of medication abortion, even in the limited cases that fall into one of the ban’s exceptions. It would also add a new requirement to the state’s rape or incest exception, mandating that victims sign an affidavit attesting to the crime perpetrated against them under threat of perjury prior to receiving care.
South Carolina Providers File Religious Freedom Challenge to Abortion Ban:
A group of South Carolina doctors have filed a federal lawsuit arguing that the state’s ban on abortion after detection of fetal cardiac activity is a violation of their religious freedom. Although the law typically protects a provider’s right to assert moral or religious objections to providing abortion care, this lawsuit flips that argument on its head. The providers argue instead that the law’s narrow provisions, which leave them unsure whether and when they can intervene in patient care in emergencies, violate their religious beliefs regarding care for others and placing their patients’ needs before their own. For example, one of the providers in the lawsuit described a circumstance where a patient came to her needing a pregnancy termination because of a kidney disease; however, the doctor’s hospital refused to approve the procedure, and the patient became more and more sick. This violated the doctor’s sincerely held beliefs and caused her to suffer, knowing that she could have helped her patient, but the law prohibited her from acting consistent with her conscience and training.
Virginia Democrats Work to Enshrine Abortion Rights:
Virginia’s House of Delegates has passed a resolution that, if ultimately successful, would enshrine abortion rights and marriage equality into the state’s constitution. In Virginia, proposed constitutional amendments must be passed twice, “with a legislative election sandwiched between each legislative session,” after which the public can vote on the question. If abortion rights are enshrined in Virginia’s constitution, it will solidify the state as a rare stronghold of abortion access in the otherwise restrictive South.
St. Luke’s Health System Files Federal EMTALA Lawsuit In Idaho:
St. Luke’s Health System in Idaho has filed a federal complaint seeking to preserve protections for emergency abortion care, despite the state’s total abortion ban. The Biden Administration filed a similar lawsuit against Idaho in 2022, arguing that the law’s failure to include an exception for the health of the pregnant person violates the Emergency Medical Treatment and Active Labor Act’s (EMTALA) requirement that stabilizing care be provided to any patient in order to preserve their life or health. However, with the incoming change in federal administration, it is likely that the federal government will not continue to pursue the lawsuit against Idaho. Accordingly, St. Luke’s lawsuit seeks to ensure that the state’s ban remains blocked for cases involving emergencies, regardless of the new administration’s actions in the case.
Trend & Policy Watch:
New Data Shows that Young People Are Moving Away from States with Abortion Bans:
New research from the National Bureau of Economic Research suggests that young people are moving away from states with strict abortion bans and restrictions in place. Data shows that before the overturn of Roe, these same states were actually losing fewer residents than other states; however, following the Dobbs decision, the number of single-person households leaving abortion ban states significantly increased. If this change in state-to-state migration patterns continues, it will impact the economic stability of ban states by making it more challenging to attract and retain workers and throwing economic markers like housing markets and tax bases into flux.
That young people, particularly those who are financially able to relocate, would factor reproductive freedom into their decisions about where to live is consistent with anecdotal evidence post-Dobbs about how decision-making frameworks are changing. The ability to control one’s reproductive journey is integral to life and career planning and stability. And, states that ban abortion are more likely to also take a restrictive approach to other individual liberties, like LGBTQ+ rights and racial and gender equity.
Biden Administration Signs Defense Spending Bill that Blocks Care Coverage for Transgender Dependents of Service Members:
In late 2024, the Biden Administration signed a version of the National Defense Authorization Act (NDAA) that included a provision banning TRICARE, the military health care program, from covering gender-affirming care for service members’ dependents. The NDAA funds the military for the 2025 fiscal year, and although President Biden signed it into law with the anti-trans provision in place, he stated that he “strongly opposes” the restriction. The restriction, which was pushed through by Republican members of Congress, will deprive thousands of minors of necessary health care.
Biden Administration Withdraws Proposed Rule for Over-the-Counter Contraceptive Coverage:
The Biden Administration has withdrawn its proposal to expand the Affordable Care Act’s requirement that private health insurance plans offer coverage for certain kinds of contraception. The expansion would have required plans to also cover over-the-counter birth control, including the newly FDA-approved OPill. It seems that the withdrawal of the proposed rule came down to a matter of timing, as the rulemaking process–the process by which federal agencies create and amend rules– is complex and time-consuming. The Administration’s notice of withdrawal indicated that the federal departments involved “have determined it is appropriate to withdraw the proposed rules” to “focus[] on other matters.”
Texas Doctor Denies Allegations That He Provided Gender-Affirming Care in Violation of State Law:
A Texas doctor targeted by Attorney General Ken Paxton has denied allegations that he provided gender-affirming care to minors in violation of state law. Dr. Hector Granados, a pediatric endocrinologist practicing in El Paso, is one of three doctors that Paxton sued over alleged violations of the law last year. Granados was reportedly puzzled when he first heard of the allegations against him, and he has stated that he follows the law and ceased providing gender-affirming care to minors after the state passed its ban.
Data Shows that Fatal Newborn Abandonments Have Increased Following Texas’s Abortion Ban:
New data suggests that since Texas implemented its strict abortion policies, the “rate of abandoned babies in Houston has increased 500%.” Advocates for safe-haven laws, laws that allow new parents to surrender their baby to certain locations without risk of penalty, stress that a lack of education about these laws plays a significant role in the number of abandonment cases, as pregnant people who cannot access abortion care do not know about all other options available to them.
Washington Aims to Implement Emergency Abortion Protections:
As fights over emergency abortion care continue in the courts, Washington Governor Jay Inslee has issued a directive requiring the state’s Department of Health to shore up access to emergency abortion care. The rules would prohibit hospitals from 1) withholding care because of a person’s pregnancy and 2) prioritizing continuing the pregnancy or the health of the fetus over the well-being of the pregnant person, unless the patient directs the hospital to do so.