10/27 - Developments in Abortion, Autonomy, and Access: 

In this edition of the digest, we discuss the latest attack on reproductive freedom in Texas and how it relates to broader efforts to restrict travel for abortion, Ohio’s upcoming ballot initiative, and rulings out of Colorado and Georgia.

Legal Changes at the State Level: 

• Brief Overview: 

  • Texas: In Texas, anti-abortion groups have sued the city of San Antonio over its Reproductive Justice Fund, asking the court to block the city from allocating any money to funds that help pregnant people pay for travel and lodging for out of state abortions. 

• Colorado: A federal judge has temporarily blocked enforcement of Colorado’s law barring facilities from providing or advertising provision of “abortion pill reversal” procedures or falsely implying that they provide abortion services if they do not. 

• Ohio: By the time the next issue of this digest comes out, Ohio’s vote on whether to enshrine abortion rights in the constitution will have occurred–this pivotal moment for the post-Roe abortion rights movement will inform how both sides approach the fight in the coming months and years. 

• Georgia: Georgia’s Supreme Court has ruled that the state’s 6-week abortion ban is constitutional and can remain in place under state law. The case will now go back to the lower court for further argument. 
  

Deeper Legal Analysis 

• Texas:

• Last month, the city of San Antonio, Texas passed its budget plan and agreed to allocate $500,000 of the $3.7 billion budget for the creation of a reproductive justice fund. The city has not yet determined how it will spend that money; however, hearings on the fund included discussion of sexual education, STI testing, pregnancy testing, resources for contraception and emergency contraception,  and potential funding for travel and lodging for people seeking abortions in states where it remains legal. Anti-abortion groups have filed a lawsuit against the city of San Antonio in an attempt to block the reproductive justice fund. They allege that it would use taxpayer money to fund “criminal organizations that violate the state’s abortion laws,” which prohibit helping someone  “procure” an abortion. Whether the state’s laws can apply to funding for travel to obtain a lawful abortion in another state is an open legal question, and San Antonio emphasizes that the funds will be used in “accordance with all federal and state laws.” After Dobbs, abortion funds in Texas temporarily ceased funding travel out of concern that they could face legal jeopardy; however, they resumed provision of service after a federal judge ruled that Texas likely had no authority to enforce its own abortion ban outside of state boundaries. Despite this prior ruling, the Plaintiffs in the lawsuit seek to stop the critical work done by abortion funds. John Seago, the president of plaintiff Texas Right to Life stated that they intend to take “discovery from every one of these abortion funds to expose their violations of state law and the criminal activities of their members and donors.” Potential discovery of donor, member and patient information related to an abortion fund at a time when Texas is pursuing an aggressively anti-choice agenda is chilling. Disclosure of the private details of who has traveled out of state to obtain an abortion, and who has helped to support that effort would be devastating. This is the latest in a series of brazen attempts by state Republicans to block pregnant people from traveling to receive legal care. We have seen similar efforts unfolding in states like Idaho, where an “abortion trafficking” law was passed, and in cities in Texas that seek to criminalize the use of their roads for abortion-related travel. The right to travel is fundamental, and efforts to restrict it must be pushed back against and rejected as undemocratic and inconsistent with a system of governance that claims liberty among its highest values.

• Colorado: 

• In Colorado, a federal judge has temporarily blocked enforcement of Colorado’s abortion pill reversal law, which would bar facilities from providing or advertising provision of “abortion pill reversal” procedures or falsely implying that they provide abortion services.. So-called abortion pill reversal is an experimental treatment that involves taking a dose of the hormone progesterone after taking the first of two medication abortion drugs in an attempt to “reverse” the medication abortion’s effects. However, as we discussed in a previous digest, the first attempt to clinically study the reversal protocol ended when three of its 12 participants had to be hospitalized due to severe bleeding. The procedure is not considered clinically standard care. After passage of the Colorado law restricting the procedure, a Catholic health clinic sued, arguing that the law infringed upon its First Amendment right to free religious exercise because it considers provision of abortion reversal services to be a religious obligation. Judge Daniel Domenico agreed with this argument and wrote in his ruling that the law must satisfy strict scrutiny–meaning that the state must “come forward with a compelling interest of the highest order” in order for the law to survive. Judge Domenico’s determination that the Colorado law infringes on religious freedom is an important development in a decades long debate about how to balance claims of sincerely held religious beliefs against other individual rights, including rights to contraception and abortion. His conclusion that the law targets religious practice and is not neutral and generally applicable is particularly interesting, as abortion opponents come from all different backgrounds–religious and non-religious–and the law applies  equally to any party that seeks to provide abortion reversal procedures, regardless of their affiliation. Judge Domenico’s ruling rests against the backdrop of the abortion rights movement’s ongoing  fight to regulate the conduct of crisis pregnancy centers and deter them from coercive and misleading tactics. You can read more about how CPCs operate here. 

• Ohio: 

  • We have discussed the Ohio ballot measure at length in this digest, but it is now only weeks away and it is more important than ever that voters understand what is on the ballot and get out to vote. Republicans have tried relentlessly to stop this ballot measure from making its way to voters, and have consistently spread misinformation about its contents and potential impact. . Issue 1 is backed by Ohioans United for Reproductive Rights and a coalition of providers and reproductive rights groups including Planned Parenthood Advocates of Ohio, the ACLU of Ohio, the Abortion Fund of Ohio, and Pro-Choice Ohio. It is opposed by prominent anti-choice groups, as well as Republican Governor Mike DeWine and other Ohio Republicans. The actual text of the ballot measure is relatively straightforward and largely codifies the Roe standard.  It would guarantee the right of every individual to make reproductive decisions, including abortion, up until the point of viability. It allows the state to prohibit or regulate abortion after viability. However, opponents of the amendment have attempted to create confusion and fear around the amendment in a number of different ways, including manipulating the language that voters will actually see in the ballot box. Most recently, Republicans have tried to reframe the issue as being one of parental rights. In a new campaign ad, Ohio First Lady Fran DeWine claimed that the amendment would “deny parents the right to be involved when their daughter is making the most important decision of her life.” Of course, the amendment does not actually say anything about parental rights, and it certainly does not “deny” parents the right to consult with their child about abortion. Ohio law generally requires parental consent for a minor to obtain an abortion, and Republicans seem to be arguing that the amendment’s language allowing individual decision-making would override this. But, whether the word “individual” will be interpreted to include minors is an open question, and in order to overturn the state’s currently enforced parental consent laws, a party would have to bring a legal challenge, and the state’s conservative Supreme Court is unlikely to strike the consent requirement down. Opponents of Issue 1 have also tried to argue that it could allow for greater access to gender affirming care. This argument is both transphobic and factually false. The amendment makes no mention of gender affirming care, and its supporters have not suggested that it would be applied in such a way; however, even if it were true that it would expand access to trans health care, that is just one more reason to support the amendment. Finally, it is worth reminding readers that, although abortion is currently legal until about 22 weeks in Ohio, the state has passed a 6-week ban that is in active litigation. If Issue 1 fails, the likelihood of that ban passing into effect and access in the state being decimated significantly increases.

• Georgia: 

  • Relying on Dobbs, Georgia’s Supreme Court has ruled that the state’s 6-week abortion ban is constitutional and can remain in place. The law bans abortion after detection of a fetal ‘heartbeat’ and contains narrow exceptions for the pregnant person’s life, pregnancies that are determined to be “medically futile,” and rape or incest prior to 20 weeks, if the crime is reported to law enforcement. Of course, even where an abortion ban has exceptions, we know that in practice these exceptions serve as political safeguards for anti-abortion legislators and fail to meaningfully increase actual access to care. Georgia’s law was one of many “trigger bans” that became operative after the fall of Roe. Previously, a lower state court ruled that it was unconstitutional because it was passed while Roe was still controlling federal law. However, that ruling was reversed and the law was allowed to take effect during the pendency of the ongoing litigation. This latest ruling from the state’s highest court deals a significant blow to arguments against the ban.. The court did not rule on the plaintiffs' additional arguments that the law violates privacy and equal protection rights under the state constitution, and the case will be handed back down to the lower court for further consideration on those points. . The ruling was praised by anti-abortion groups and conservative state politicians. Advocates for abortion access, including plaintiff SisterSong and the Biden Administration criticized the ruling and lamented the impact that it will have on an already severely limited reproductive healthcare landscape.

What else is happening in access? 

• In Alliance for Hippocratic Medicine v. FDA, diverse stakeholders have penned amicus briefs urging the Supreme Court to preserve access to mifepristone. Supporting the Biden Administration’s appeal are “reproductive rights organizations, medical and legal experts, patient advocacy groups, 257 members of Congress, 23 states and D.C., over 600 state legislators, state and local governments and officials, and pharmaceutical representatives.” In the coming months, the Court will decide whether it will hear the case and whether to alter the availability of mifepristone.

• In the wake of sweeping state restrictions on abortion and driven by a deep sense of duty, many abortion providers have made the difficult decision to become traveling providers, oftentimes at great personal cost to the stability of their own lives. Read the account of one such doctor here. 

• After being denied a necessary abortion in the face of a devastating fetal diagnosis, Tennessee woman Allie Phillips has decided to take the fight into her own hands and run for a seat in the Tennessee statehouse. After her experience of being turned away for care in her home state, she met with the representative whose seat she is now challenging–during this meeting, he reportedly expressed to her that he had been under the impression that complications only occur during a person’s first pregnancy. 

• Jeff Landry, a Trump-supported Republican and anti-abortion, anti-lgbtq+ politician, has won Louisiana’s governor’s race. 

• In Michigan, Democratic state Rep. Karen Whitsett continues to hold-up passage of the Reproductive Health Act, citing concerns about the removal of restrictions like a 24-hour waiting period and the potential for state funding of reproductive services. 

• The Wisconsin legislature has passed a series of anti-abortion laws and a ban on gender affirming care for minors, all of which Democratic Governor Tony Evers has said he will veto. 

• The 11th Circuit Court of Appeals has ruled against Florida Governor Ron DeSantis’s anti-drag bill on First Amendment grounds. 

• With all eyes on state-level elections around the country that are turning on abortion rights, watch out for ways in which Republicans are changing their language and messaging on the subject in order to paint Democrats as extreme. After anti-abortion campaigns failed to receive the support that Republicans expected in 2022, some politicians are trying to flip the script. 

• The new Speaker of the House Mike Johnson, a Republican from Louisiana, has a long anti-abortion and anti-lgbtq+ history, including previously serving as counsel for the Alliance Defending Freedom, the group behind many state abortion bans and restrictions. 

• Japan’s Supreme Court ruled unconstitutional a law that required transgender people to undergo mandatory sterilization in order to receive legal gender recognition.