Developments in Abortion, Autonomy, and Access:
In this week’s edition of the digest, we get to celebrate the outcomes of many of the elections that we have been reporting on for months, including those out of Kentucky, Ohio, Virginia, and Pennsylvania. The impact of these wins cannot be understated, but of course, the fight is far from over, and anti-choice actors continue to push to restrict access. Please read on for more information.
Legal Changes at the State Level
Brief Overview:
Ohio: On election day, Ohioans successfully voted to enshrine reproductive rights in their state constitution, despite months of relentless opposition and underhanded political maneuvering from anti-choice groups and lawmakers in the state.
Virginia: Virginia’s Republican Governor Glenn Youngkin has been vocal about his plans to pass a 15-week abortion ban if Republicans managed to take control of the state senate. In Tuesday’s election, however, Democrats not only retained their majority in the Senate, but flipped the House, securing the relative safety of abortion rights in the state for the immediate future.
Kentucky: Kentucky’s gubernatorial race resulted in another huge win for abortion rights, with Democrat Andy Beshear securing reelection after running a heavily abortion-focused campaign.
Kansas: A Kansas District Judge issued a ruling halting enforcement of several of the state’s barriers to abortion care, including a 24-hour waiting period and medically unnecessary and misleading mandatory disclosures.
Mifepristone Update: Missouri, Idaho, and Kansas have filed a new Complaint in the Northern District of Texas. The states are asking the court to reinstate 2016 regulations on the distribution of mifepristone, including a requirement for in-person dispensing. Missouri Attorney General Andrew Bailey has requested that the lawsuit be joined with the ongoing Alliance for Hippocratic Medicine v. FDA case.
Idaho: Idaho’s abortion trafficking law has been temporarily halted by a federal court. The first-of-its-kind law makes it a crime to assist a minor in obtaining an abortion outside of Idaho without parental consent and has drawn a great deal of criticism for infringing on various fundamental constitutional rights. In her opinion, Magistrate Judge Debora Grasham explained that the case is not about abortion, but about “long-standing and well-recognized fundamental rights of freedom of speech, expression, due process, and parental rights.” She also expressed that Idaho cannot label the targeted activity as trafficking when the abortion obtained in another state would be a completely legal activity. The injunction is only preliminary, and we will continue reporting on this case as it develops.
Legal Analysis:
Ohio:
After months of tireless effort and unrelenting advocacy, Ohioans have officially voted to pass Issue 1, enshrining reproductive rights into their state constitution. The amendment protects contraception, fertility treatments, the choice to continue a pregnancy, miscarriage care, and abortion. With this vote, Ohio becomes the fourth state to explicitly protect reproductive rights in its state constitution, joining the ranks of California, Vermont, and Michigan. The path to the November 7th vote has been fraught with opposition, including an August special election to try and raise the threshold for passing a constitutional amendment from a simple majority to 60%, manipulative ballot summary language intended to mislead voters, and widespread misinformation campaigns about the impact of the amendment. Despite all of this, choice won in Ohio–a state that voted for Donald Trump in both 2016 and 2020.
The impact of the passage of Issue 1 cannot be overstated. It is a critical indicator that, despite Republican insistence to the contrary, Americans want to have control over their own bodily autonomy and medical decision-making. And, this race inevitably serves as a test case for advocates working to pass ballot initiatives in other red-leaning states, including Florida.
For Ohio itself, the passage of Issue 1 should render the state’s so-called heartbeat bill void. The Amendment effectively codifies the Roe standard, prohibiting the government from intruding on reproductive rights pre ‘viability’, or in cases where the provider determines that the pregnant person’s life or health is at risk. Post-‘viability’, the state may prohibit abortion. The amendment defines fetal viability as “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.” A coalition of Republican lawmakers in Ohio have already said that they plan to do everything within their power to stop Issue 1 from taking effect, including “introducing several bills to address th[e] issue” and possibly stripping the judiciary of jurisdiction over the constitutional amendment. In other words, rather than allowing the will of the people to stand, these elected officials are willing to wield their positions of power to overturn it.
Virginia:
In another huge win for abortion rights this Tuesday, Virginia Democrats not only retained control of the state Senate, but took control of the House. Prior to this election, the state’s General Assembly was split, with Democrats holding the Senate and Republicans controlling the House. The state’s Republican Governor Glenn Youngkin has been clear about his plans to pass a 15-week abortion ban if Republicans managed to take control of the Senate, giving him the political structure needed to do so. Rather than taking the Senate, however, Republicans lost their majority in the House, meaning that Democrats now hold a majority in both legislative chambers. With the results of this election, abortion rights in Virginia are likely relatively safe for the time being. Virginia is the only southern state without an abortion ban in place and will remain a critical access point for pregnant people in the south.
The Virginia election also offers important insight into what kind of messaging around abortion voters respond to. The campaign rhetoric leading up to the election day heavily centered on abortion, with Governor Youngkin testing new messaging strategies, including insisting that the bill that he would pass is not an abortion ban, but a “reasonable 15-week limit.” This shift in language reflected an overall strategy of painting Democrats as extreme on abortion and deflecting from the narrative that Republicans have gone too far on the issue. Had Governor Youngkin’s message succeeded, it would have signaled to other lawmakers that positioning a 15-week ban as a reasonable middle ground is a winning strategy. Instead, Virginia Republicans’ legislative loss delivers a severe blow to that agenda and reinforces the fact that autonomy over reproductive decision-making matters to voters.
Kentucky
The pro-choice wins continued in Kentucky this week, as the historically red state reelected incumbent Democratic Governor Andy Beshear. Like the legislative race in Virginia, abortion was a centerpiece of the Kentucky gubernatorial race. Governor Beshear ran against Republican Attorney General Daniel Cameron.
The pro-choice wins continued in Kentucky this week, as the historically red state reelected incumbent Democratic Governor Andy Beshear. Like the legislative race in Virginia, abortion was a centerpiece of the Kentucky gubernatorial race. Governor Beshear ran against Republican Attorney General Daniel Cameron.
Kansas:
In Kansas, District Judge Christopher Jayaram issued a ruling halting the enforcement of several of the state’s barriers to abortion care. His ruling primarily focused on medically unnecessary disclosure requirements and the state’s mandatory 24-hour waiting period. Proponents of these restrictions assert that they are necessary for informed consent and protecting “maternal health and safety and the lives of the unborn.” However, Judge Jayaram disagreed, writing that the “Women’s Right to Know Act” “appears to be a thinly veiled effort to stigmatize the procedure and instill fear in patients who are contemplating an abortion, such that they make an alternative choice, based upon disproven and unsupportable claims.”
Judge Jayaram rejected the arguments that mandatory disclosures about certain “risks” associated with abortion were necessary to protect the pregnant person’s health. He wrote that “the weight of the credible evidence submitted…reveals that the State’s mandated disclosures regarding ‘increased’ risks (whether preterm labor or breast cancer)…are likely inaccurate, misleading, and/or not generally accepted views within the mainstream medical community” set forth to “promote the State’s clear preference in favor of childbirth, rather than abortion.” His opinion also determined that the imposition of a medically unnecessary 24-hour waiting period between receiving disclosures and obtaining the procedure and a 30-minute waiting period on the day of the abortion impose substantial roadblocks to pregnant people accessing their fundamental right to bodily autonomy. The injunction also halts the requirement that providers inform their patients of the possibility of abortion reversal, a scientifically unsupported non-standard practice. The removal of these restrictions will remain in place pending a trial, which is currently set for June 2024.
Mifepristone Update:
If you read this newsletter, you know that the abortion drug mifepristone has been under relentless attack this year, despite its exemplary record of safety and efficacy. Most notably, in Alliance for Hippocratic Medicine v. FDA, the plaintiffs brought a challenge to the FDA’s approval of the drug and subsequent changes to its terms of use. That case has wound its way through federal district and circuit courts out of Texas and now sits before the U.S. Supreme Court, who will decide whether to hear the case.
If you read this newsletter, you know that the abortion drug mifepristone has been under relentless attack this year, despite its exemplary record of safety and efficacy. Most notably, in Alliance for Hippocratic Medicine v. FDA, the plaintiffs brought a challenge to the FDA’s approval of the drug and subsequent changes to its terms of use. That case has wound its way through federal district and circuit courts out of Texas and now sits before the U.S. Supreme Court, who will decide whether to hear the case.
More News in Access:
Pennsylvania has elected Democrat Dan McCaffery to its open state Supreme Court seat, solidifying the liberal majority. Like other state races this election day, McCaffery’s campaign and supporters centered abortion rights as a key issue in the lead up to the vote.
In Michigan, pro-life groups and lawmakers are suing to overturn the constitutional amendment protecting abortion that Michiganders voted to pass last year. The lawsuit attacks the amendment on constitutional grounds, arguing that it creates a “super right” in violation of the First and Fourteenth Amendments to the U.S. Constitution. This will be an important lawsuit to watch. If it is successful, anti-choice groups will undoubtedly use it as a roadmap to attempt to overturn similar ballot measures in other states.
Idaho’s first abortion trafficking arrest has taken place, with Idaho officials arresting a mother and son based on their taking of a teenager to Oregon to obtain an abortion. Although they have not formally been charged with abortion trafficking, the prosecutor’s language mirrors identically the language in the trafficking statute. It also raises important questions about the strength of shield laws in cases where officials are able to use cell phone location technology to circumvent those laws and directly obtain information about whether a person visited an abortion clinic in another state.
In Florida, a lawsuit challenging the state’s restrictions on trans health for minors has received the go-ahead to proceed as a class action, an important development for protecting all trans people in Florida, not just the plaintiffs named in the lawsuit itself.
New data shows that in the year since Roe fell, abortions in the U.S. have not actually dropped nationwide. Instead, the states where people have gone for care have changed, and reliance on telemedicine has drastically increased.
Families out of Tennessee have petitioned the U.S. Supreme Court to hear their challenge to a Sixth Circuit ruling allowing the state’s ban on transgender healthcare to go into effect. Although the necessity of challenging the lower courts’ ruling is manifest, the challengers face a high court hostile to bodily autonomy rights–the same court that overturned Roe nearly a year and a half ago.
In Missouri, advocates are attempting to get abortion on the 2024 ballot. However, the state has repeatedly tried to stymie these efforts. Most recently, a Missouri appeals court ruled against Secretary of State Ashcroft’s suggested ballot language summaries, which contained inflammatory and false descriptions of the ballot measure, including a statement that it would “allow dangerous and unregulated abortions until live birth.”
A satanic temple in Indiana has lost its lawsuit against the state’s abortion restrictions. The temple argued that their beliefs allowed members to obtain abortions, in conflict with the abortion ban. The State’s Attorney General called the lawsuit “ridiculous.”
In Texas, the Biden Administration is arguing in federal court for the right of minors to obtain contraception from federally-funded Title X clinics without parental consent. The Administration faces an uphill battle with an extremely conservative circuit court that has repeatedly ruled against bodily autonomy.
One of the physicians involved in the lawsuit challenging the FDA’s approval of mifepristone has been recruited to an advisory board to assess the potential use of the drug to treat breast cancer. In a statement, he opined that “the concept of leveraging the effect of the abortion pill in life-saving as opposed to a life-taking scenario is extremely exciting,” tipping his hand that the opposition to mifepristone was always about ideology–not medical safety.
In more news out of Texas, the Fifth Circuit Court of Appeals heard oral arguments about whether and to what extent federal EMTALA obligations to treat patients in emergency situations conflict with the state’s extraordinarily narrow exceptions to its abortion ban. A similar argument about EMTALA and abortion is playing out in Idaho.