10/13 - Developments in Abortion, Autonomy, and Access: 

In this week’s digest, we discuss the recent rulings out of Idaho and North Carolina, the Supreme Court’s new term, and the importance of abortion in upcoming state-level elections. Read our issue of the week for a dive into the role and power of abortion storytelling in the reproductive freedom movement.

Legal Changes at the State Level: 

• Brief Overview: 

  • Idaho: About two weeks ago, a U.S. Court of Appeals ruled that Idaho’s near total abortion ban does not conflict with obligations to provide emergency care under the Emergency Medical Treatment and Labor Act (EMTALA). This week, the Ninth Circuit has agreed to reconsider that ruling.  

  • North Carolina: A federal judge has blocked 2 portions of North Carolina’s 12-week abortion ban from taking effect during litigation. Judge Catherine Eagles halted enforcement of the requirement that abortions after 12-weeks must take place in a hospital (rather than a clinic or other appropriate setting), and she extended her block on the requirement that providers determine and document the intrauterine location of the pregnancy prior to prescribing medication abortion. 

  • Virginia: As with other state-level elections, abortion has taken center stage in Virginia’s upcoming legislative race. The outcome of the election will determine the political viability of Republican Governor Glenn Youngkin’s proposed 15-week abortion ban. 

  • Mifepristone: The Supreme Court has returned for its new term, and in the coming months it will decide whether or not to hear the case challenging the FDA’s approval of mifepristone. Whether it decides to hear the case or not, the long and short term consequences  for access to the drug will be significant.
    

Deeper Legal Analysis 

• Idaho: 

  • On September 29th, the Ninth Circuit Court of Appeals issued a ruling that Idaho’s total abortion ban does not conflict with obligations under the federal Emergency Medical Treatment and Labor Act (EMTALA). On Tuesday, October 10, however, the Court agreed to reconsider that decision.  Previously, the Biden Administration sued the state of Idaho, arguing that its ban, which prohibits abortion at any gestational age unless to save the pregnant person’s life, was so strict as to run afoul of EMTALA’s federal requirements. Under EMTALA, any hospital or medical system that receives medicare funding must provide stabilizing emergency care to patients presenting at the E.R., regardless of their ability to pay. The Biden administration argued that Idaho’s narrow “life” exception put doctors in a position of risking criminal prosecution under Idaho’s state laws or risking the loss of funding under EMTALA. In August, a district court judge sided with the administration and ruled that emergency room doctors could not be subjected to criminal penalties under Idaho’s abortion ban for providing abortions in emergency cases where it is stabilizing care. However, a Ninth Circuit panel reversed that ruling.  Although the Ninth Circuit has a well-earned reputation for being one of the most liberal federal appeals courts, the panel that overturned the district court’s ruling was made up of three  Trump appointees. The panel unanimously found that the state’s law, which requires a physician to refrain from performing an abortion unless they believe it necessary to save the pregnant person from death, was sufficient under federal obligations. However, with Tuesday’s order granting reconsideration, the lower courts’ injunction is back in place, and providers are temporarily protected in cases of emergency. The case will be reconsidered by an “en banc” panel of 10 judges, randomly selected from the Court’s 28 active judges.

• North Carolina:

• In North Carolina, a federal judge has issued an order blocking 2 portions of the state’s 12-week abortion ban from taking effect for the time being. Specifically, Judge Catherine Eagles (1) halted enforcement of the requirement that abortions performed after 12 weeks must take place exclusively in hospital settings; and (2) extended the block on the requirement that the location of the pregnancy in the uterus be confirmed prior to prescribing a medication abortion. The order will stay in place until the litigation is resolved. As you may recall, when North Carolina passed its abortion ban over Governor Roy Cooper’s veto, it was the subject of intense scrutiny for its many medically unnecessary requirements, each of which act as additional barriers to care. With respect to the requirement that a provider document the intrauterine location of the pregnancy prior to prescribing a medication abortion, Judge Eagles found that the statute’s language is so vague that providers cannot fairly know what is required of them. She reasoned that, because pregnancy is not detectable by ultrasound until 5-6 weeks, providers may be subjected to punishment for a failure to definitively locate an early pregnancy.  This would then operate as an implicit ban on medication abortion early in pregnancy despite its legality until 12 weeks. With respect to the requirement that abortions after 12 weeks be performed in hospitals, Judge Eagles correctly found that miscarriage care performed after 12 weeks in pregnancy is not required to take place in a hospital, despite it being the exact same procedure as the one used in cases of surgical abortion. Republicans supporting the requirement offered no sound reason why the location requirement should differ between abortion and miscarriage patients. Although this is far from the final word on the details of the state’s abortion ban, it sets an optimistic precedent for the current challenge, and we will continue to update you as the litigation progresses.
  

• Mifepristone: 

• The Supreme Court has returned for its new term, and in the coming months it will decide whether or not to hear the case challenging the FDA’s approval of mifepristone. As a reminder, the Biden Administration filed a Petition for a Writ of Certiorari with the U.S. Supreme Court in September. A “cert petition” is the process by which a party asks the Supreme Court to review an order of a lower court–typically a federal appeals court. Unlike the federal courts of appeals, where a party has the right to have their appeal heard, the Supreme Court is not obligated to take up a case. In fact, in any given term, it grants cert in under 5% of cases. However, given the extremely public and vitally important nature of this particular case, the likelihood that the Court takes it appears higher than usual. Regardless of what the court decides, it will have massive consequences for access to the drug. If the Justices agree to hear the merits of the case, the Biden Administration faces an extremely conservative court–the very same court that overturned Roe just over a year ago. The Court could (and likely would) rule in ways that severely restrict access to the drug and upend the FDA’s regulatory process. But, if the Court declines to take the case, its stay on the lower courts’ rulings will expire and the Fifth Circuit’s ruling will go into effect, reimposing unnecessary and medically unsupported restrictions on the terms of use for the drug. As uncertainty over the future of mifepristone looms large, a small number of certified pharmacies across the country have begun directly dispensing mifepristone, with CVS and Walgreens indicating that they are also seeking certification to do so. 

• Virginia: 

• Across the country, state level elections are turning on the question of abortion policy, and Virginia’s legislative race is a key one to watch. Currently, Virginia’s Republican Governor Glenn Youngkin has not had the legislative power needed to pass abortion restrictions, making Virginia one of the only southern states where abortion remains relatively accessible. However, if Republicans take control of the state legislature, this will change. Governor Youngkin has consistently expressed his desire to pass a 15-week abortion ban, with narrow exceptions, and the debate over abortion has taken center stage in the runup to the election. Both sides attempt to paint the other as extreme on the issue, and each has invested heavily in political ads and messaging. This week, Governor Youngkin’s PAC spent 1.4 million dollars on an ad focused on abortion, with the sound of a baby cooing and an ultrasound heartbeat in the background throughout. He insists that the proposed 15-week ban is not a ban at all, but a “limit.” How Virginians turn out to vote will serve as a bellwether for other states as they strategize for their own legislative races.  And ahead of next year’s presidential election, Virginia offers a test case for the effectiveness of both pro and anti abortion messaging and tactics. 

What else is happening in access? 

• Illinois recently had its day in court over a challenge to a 2017 state law requiring providers who do not perform abortions to give referrals to or information about abortion providers to patients who request it. This case is relevant to the simultaneous litigation around Illinois laws regulating crisis pregnancy centers. This article offers a thorough breakdown and contextualization of the ongoing cases. 

• Massachusetts’ Attorney General has appointed Sapna Khatri as Director of its new Reproductive Justice Unit, the Unit will be dedicated to ensuring that Maryland enacts strong and comprehensive protections for both reproductive healthcare and gender affirming care. 

• As we mentioned in our last digest, House Republicans attempted to advance a package of appropriations bills that included a provision severely restricting access to medication abortion. Thanks to heavy bipartisan opposition, that bill failed. 

• Two shotgun rounds were fired into the front entry of a Planned Parenthood in Helena, Montana. No one was injured; however attacks and threats against providers and clinics have increased in recent years. 

• Advocates in Nebraska have taken a page out of the pro-life playbook and put up billboards and banners pushing back against the state’s restrictive laws. 

• Another Texas county has passed anti-abortion trafficking laws, meaning that it outlaws the use of its roads to seek an abortion. Anti-choice advocates praised this move specifically because of Cochran County’s location on the New Mexico border, a key state for Texans traveling to  access care. 

• Russia, although historically fairly liberal on abortion, has passed restrictions on the use of medication abortion, continuing the trend of countries around the world moving backwards on reproductive rights. 

• As we reported last week, Missouri is engaged in an ongoing fight to enshrine reproductive rights into its constitution. A Republican-led group has now weighed in in favor of easing restrictions in the state’s strict law, calling for broader exceptions. 

• In Oklahoma, a judge has allowed the state’s ban on gender affirming care to go into effect. 

• For a solid roundup of ongoing abortion litigation, read here. 

• A North Carolina family, doctor, and two LGBTQ+ rights groups are suing to block the state’s gender affirming care ban for minors. 
  

Issue of the Week:Abortion Storytelling

Storytelling is powerful. It is how we share our human experience with others and come to learn about, relate to, and empathize with theirs. In this digest, we talk a lot about policy, legislation and litigation, and while those shape our political and legal landscape, they do not tell the full story. Legal arguments can be abstracted and compartmentalized–we can discuss and debate them intellectually without engaging more deeply with their very real human impact. But that human impact is powerful, and sometimes, the most compelling way to reach others is by simply and authentically telling our own stories. 

Throughout the reproductive justice movement, storytelling has played a huge role in opening up dialogue and breaking down stigma. And in the past several years, abortion storytelling has taken on more and more importance. Each story told allows others to see themselves reflected back and understand the nuance and incredible complexity of each person’s circumstances and decisions. Over the past year, we have seen countless harmful and restrictive laws passed in states across the country, and storytellers give a voice to the impact of those  laws and the necessity of continuing to fight for access. In states where the message from the government is that having or seeking an abortion is a morally reprehensible choice, access to stories of people who have made that choice can be empowering, validating and healing. When discussing the issue with anti-abortion advocates, storytelling can put a face to a policy and act as a tool for facilitating more empathetic and grounded conversations. Storytelling also plays an important role in moving political forces and shaping public opinion on a larger scale. 

You may recall a few years ago in Texas, when a high school valedictorian made headlines and went viral for using her commencement speech to address the passage of SB-8 (the Texas fetal heartbeat bill) and how it would impact the futures of her fellow graduates. While her speech was not an abortion story, it made waves as a reminder that personally speaking out has the power to move the listener. Organizations like We Testify make it their mission to change the narrative by amplifying the voices of abortion storytellers, “particularly those of color, those from rural and conservative communities, those who are queer-identified, those with varying abilities and citizenship statuses, and those who needed support when navigating barriers while accessing abortion care.” Similarly, Abortion Out Loud uses the power of storytelling as a tool for breaking down stigma and advocating for abortion access. In addition to written stories, activists with Abortion Out Loud “lead abortion speakouts, [] public education campaigns, and work with campus and local officials to strengthen young people’s access to abortion services.” Dr. Meera Shah, a family medicine physician and advocate for reproductive health used the power of storytelling, combined with her expert insights as a physician who provides abortions, to write her book “You’re the Only One I’ve Told, the Stories Behind Abortion.” Through the stories told, she was able to  give a platform to the diverse experiences of abortion patients. 

The truth is that everyone knows and loves someone who has had an abortion (whether they know it or not). So, as we continue in the fight for reproductive freedom and policy debates swirl around us, I encourage everyone (regardless of your position) to take a moment to explore these resources, read some of the stories and consider the storytellers behind them.