Developments in Abortion, Autonomy, and Access:
This week’s Digest goes through efforts to curtail reproductive rights and bodily autonomy at the federal level, proposed state legislation that would further restrict access to abortion, updates on litigation and constitutional amendments, and a look at the trends that we are watching. Please read on to the end for the news that you need to know.
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This Week’s Must Read:
This week’s must-read comes from Vermont, where a new lawsuit alleges facts showing that Vermont has been tracking the pregnancies of pregnant people who it sees as potentially unsuitable parents. In an alarming account of pregnancy surveillance and criminalization, the lawsuit sets forth how Vermont’s child welfare agency received unproven allegations about a pregnant woman’s mental health and proceeded to seek and take custody of the unborn child before she was even born. The patient had no idea that custody of her child had been decided without her involvement or consent until her newborn was removed from her care immediately after birth.
Legislation & Litigation:
Overview:
North Dakota abortion ban to remain on hold pending litigation;
Lawsuit challenging FDA’s approval and regulation of mifepristone to move forward in Texas-based federal court;
Abortion rights are enshrined in the Maryland Constitution;
Indiana, North Dakota, Mississippi, Oklahoma, South Carolina, Nebraska, and other states introduce legislation that would further limit reproductive freedom; and
The first week of the Trump Administration brings a flurry of executive orders taking aim at bodily autonomy, reproductive rights and health equity.
North Dakota Abortion Ban to Remain on Hold:
Last December, a North Dakota state judge struck down the state’s abortion ban as unconstitutional. In defending its abortion ban, the state asked the North Dakota Supreme Court to allow the law to take effect pending appeal. Last week, the court rejected that request, meaning that the ban will remain blocked. Although this means that abortion technically remains legal until viability, no abortion providers remain in the state, and abortion is only functionally available in emergency situations.
Lawsuit Challenging Mifepristone to Move Forward:
Judge Matthew Kacsmaryk, a notoriously anti-abortion federal judge out of the Northern District of Texas, has ruled that three Republican states can move forward with their challenge to the legality of the abortion pill mifepristone. Last year, the U.S. Supreme Court threw out the original lawsuit brought by The Alliance for Hippocratic Medicine, finding that the group of anti-abortion doctors and groups lacked constitutional standing to bring their claim, as they were unable to show any injury caused by FDA’s actions. Prior to the Court’s decision, Kansas, Idaho, and Missouri joined the lawsuit in the Northern District, arguing that their states’ interests were harmed by the accessibility of mifepristone. Although the original plaintiffs voluntarily dropped the suit in light of the Supreme Court’s ruling, Judge Kacsmaryk has issued a striking ruling allowing the three states to file an amended complaint and continue the lawsuit in a Texas-based federal court. The continuation of the lawsuit in this way conflicts with decades of well-established precedent regarding jurisdiction, venue, and standing.
Abortion Rights Enshrined in Maryland:
In November, voters in Maryland passed an abortion rights amendment enshrining the right into the state constitution. Last week, Maryland Governor Wes Moore signed a proclamation officially amending the constitution. Although abortion was already protected by statute in the state, a constitutional amendment provides more permanent and immovable protections.
States Take Legislative and Executive Action That Would Limit Abortion Rights:
Indiana: Indiana Governor Mike Braun has signed an executive order that strengthens the requirement that pregnancy terminations be documented and individually reported to the state’s Department of Health. Currently, the Indiana DOH reports quarterly aggregated data on abortion. However, anti-abortion groups and lawmakers want to make each individual report public, raising concerns about the ability to reverse-engineer that information to identify abortion patients, as so few abortions are being performed in the state.
Indiana, North Dakota, Oklahoma, and South Carolina Introduce Legislation to Prosecute Abortion Patients: At least four states have introduced legislation allowing abortion patients to be prosecuted for homicide. Although abortion restrictions have long involved penalties for abortion providers, the prosecution of the patients themselves has traditionally been a line that anti-abortion actors are unwilling to cross. However, with the national political climate surrounding abortion growing more extreme and an abortion-hostile federal administration in power, state legislators are showing an appetite for more severe and punitive legislation. In addition to these homicide bills, several states have also introduced bills shoring up the idea of fetal personhood.
Abortion Trafficking in Mississippi: A Mississippi bill would make it a felony to assist a minor out of state for an abortion. This proposed legislation follows on the heels of Idaho and Tennessee’s similar ‘abortion trafficking’ laws, both of which are currently blocked in whole or in part.
Nebraska Restrictions on Medication Abortion: In Nebraska, legislation has been introduced that would make it significantly more difficult to obtain a medication abortion. Under the proposed law, patients would be subjected to a number of non-medically standard requirements, including in-person visits both before and after receiving the medication, and onerous testing and documentation requirements.
Trump Administration’s Executive Orders Take Aim at Bodily Autonomy, LGBTQ+ Rights, and Abortion Access:
The first two weeks of the second Trump Administration saw a flurry of executive orders, a large swath of which take aim at lgbtq+ rights, health equity and access, and bodily autonomy generally. Although many of these orders will be, or already have been, challenged in court, they reflect a clear federal agenda of rolling back civil rights protections and placing the authority over individual liberties in the hands of the executive branch.
One of the most striking executive orders declares, in contravention of reality, that there are only two sexes and that sex and gender are unchangeable and immutable, effectively denying the existence of trans and gender-diverse people. The order also contained (scientifically inaccurate) fetal personhood language by defining a woman or a man as a person belonging, at conception, to the sex that produces the large reproductive cell and small reproductive cell, respectively. Following this order redefining sex and gender, the administration also handed down directives banning trans people from serving in the military and attempting to revoke federal funding for any gender-affirming care for people under the age of 19.
In addition to attempting to roll back rights for LGBTQ+ people, the new administration also issued several orders targeting DEI programs, threatening to enforce a harsh anti-DEI agenda against both the public and private sectors.
Although the Administration has not yet taken a direct shot at eliminating abortion rights, it has signaled its hostility to reproductive freedom in other crucial ways. One Executive Order, signed on January 24th, orders strict enforcement of the Hyde Amendment, the law prohibiting federal funding from being used for abortion. Additionally, The Administration has reinstated the ‘Mexico City Policy,’ otherwise known as the Global Gag Rule, whereby NGOs that receive funding from the U.S. must certify that they do not promote or provide abortion care.
Trend & Policy Watch:
Government Website Offering Reproductive Health Information Taken Offline:
The government-run website Reproductiverights.org appears to have been taken offline in the first week of the Trump Administration. The website was created in 2022 and included information about access to birth control, insurance coverage for preventative healthcare, including HIV and cancer screening, and the legal status of abortion across the states.
Social Media Platforms Censor Access to Abortion Pill Information:
Social media platforms Instagram and Facebook are facing scrutiny for censoring, suspending, or blocking posts and profiles related to medication abortion access. For example, Aid Access, a prominent abortion pill provider’s page, was suspended, making it unsearchable even by those who follow them. Hey Jane, Women Help Women and Just the Pill faced similar obstacles. Although Meta stated that the profiles and posts were targeted for violating community standards regarding guns, drugs, and other restricted goods, abortion pills are FDA-approved, commonly used, and entirely legal in many states across the country, and it is unclear how provision of information about the drugs would violate any stated policy.
Recent Data Indicates that Support for Access to Medication Abortion is Growing:
New data from the Journal of the American Medical Association (JAMA) shows that support for access to medication abortion is growing. A sample of women aged 15 to 49 were surveyed in 2021, before the Dobbs decision, and again in mid-2023; results showed 6% increased support for both access to abortion pills prior to pregnancy, to be taken in the event of a pregnancy, and over-the-counter no-prescription access to the medication.
Anti-Abortion Activists Look to Men to Report Their Partners’ Abortions:
In the years following the Dobbs decision, anti-abortion activists have failed to stem the flow of abortion pills to pregnant people in ban-states. It now appears that the groups are ramping up a strategy of encouraging women’s partners to report them for abortions. According to John Seago, the president of Texas Right to Life, “The strategy right now is to tell dads that if you’re the father of a child victim of an abortion, you have legal rights, there may be a way to hold these people accountable.” Reportedly, the group will use a social media advertising campaign to reach these men. Already, Texas Attorney General Ken Paxton has filed a lawsuit against a New York doctor based on a report from a “biological father” of his partner’s abortion.
New Mexico Supreme Court Decision May Tee Up Supreme Court Challenge:
In our last Digest, we reported on the New Mexico Supreme Court’s ruling striking down local abortion bans in the state. These local bans rely on an erroneous interpretation of the Comstock Act to attempt to block the sending or receipt of abortion pills through the mail, even in states like New Mexico, where abortion is legal under state law. The ruling from New Mexico’s highest court may allow anti-abortion activists to bring the issue of whether and how Comstock should be enforced to the U.S. Supreme Court, where it could find a favorable audience with the conservative majority.
State Department Halts Issuance of New Passports for Trans Americans:
The U.S. State Department under Marco Rubio has stopped issuing new or renewed passports for transgender Americans seeking to change their gender marker on their documentation. For those who have already submitted their passport application, this means that their critical documents – including their previous passport and birth certificate – are in the possession of the State Department without a clear path for return. Without guidance from the Administration, thousands of Americans are now left in legal limbo, including those who are currently traveling. This action comes in direct response to the new Administration’s Executive Order denying the existence of transgender people and seeking to effect a near-total erasure of their rights and protections.