Developments in Abortion, Autonomy, and Access:
We took a hiatus from our bi-weekly Digest last week while everyone’s attention was focused on voting, the election results, and processing what those results mean for the future of reproductive health and justice. This week, we are back to report on the wins and losses with state abortion rights ballot measures, update you on new and ongoing litigation, and walk through policy trends that we are watching as we prepare for a new federal administration. Please read on for the news that you need to know.
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This Week’s Must Read:
Media coverage of reproductive rights news this week has largely revolved around the election results; however, in the interim since our last Digest, ProPublica published two reports of Texas women who died as a result of the state’s abortion bans. These women, Josseli Barnica and Nevaeh Crain, should not have lost their lives, and if they had been able to receive the care that their doctors were trained to provide, they would still be here with their families. Instead, Texas’s extraordinarily harsh anti-abortion laws and climate of fear and criminalization meant that their doctors were unable to intervene to save them.
Nevaeh Crain, 18, died of sepsis during a miscarriage. Prior to her death, she was sent home from two different hospitals despite her rapidly worsening condition and clear signs of infection. Josseli Barnica, 28, suffered a similar fate when she began experiencing a miscarriage at 17 weeks pregnant. Instead of receiving prompt care for her miscarriage, the medical team was forced to wait until there was no fetal heartbeat. As a result of that delay, Barnica developed a preventable infection and died days after delivery.
As we face an uncertain future for reproductive freedom, we must keep these women’s names and stories in mind. It is our obligation, even in the face of immense setbacks, to continue this fight to ensure that what happened to them is not forgotten and is never repeated.
Ballot Initiatives:
Last week, 10 states voted on abortion rights. 7 out of those 10 states passed their measures, enshrining protections for reproductive rights into their state’s constitutions. The results of each race are discussed below.
Arizona
Arizonans voted to pass Proposition 139, enshrining pre-viability abortion rights into the state constitution. The measure also requires that post-viability abortion be permitted when necessary to preserve the physical or mental health of the pregnant person. Currently, abortion is banned in the state after 15 weeks; however, earlier this year, the Arizona Supreme Court issued a ruling finding that an 1864 total abortion ban was enforceable. Although that ban was subsequently repealed legislatively, the court’s actions likely galvanized support for passing constitutional protections for reproductive health care.
Colorado:
Although abortion is already legal in Colorado, voters passed an amendment enshrining those protections into the state constitution. In addition to prohibiting state and local governments from impeding a person’s right to access abortion, the ballot measure also rolls back an old rule barring the use of state funds for abortion. Combined with the state’s shield laws, the new amendment solidifies Colorado’s status as a stronghold for reproductive rights.
Florida:
After a hard-fought race, Florida’s abortion rights ballot measure unfortunately did not pass. Florida has an unusually high passage threshold, requiring 60% of the vote. “Yes” votes on the measure garnered just over 57%, and the amount of support that the measure received at the ballot box is indicative of the continued popularity of abortion rights. The measure’s near-passage is particularly commendable in light of the state’s relentless attempts to block it, utilizing nearly every lever of government. Abortion will now continue to be banned in the state after 6 weeks.
Maryland:
Similar to Colorado, Maryland’s laws already protect the right to abortion care; however, enshrining those rights in the constitution strengthens them and substantially protects them from changing state administrations. To that end, voters in Maryland passed its abortion rights ballot measure last week. It creates a fundamental right to reproductive freedom in the state and prohibits the state from interfering with that right either directly or indirectly. This language will likely make it more difficult for anti-choice legislators to pass TRAP laws that have the purpose and effect of making access more difficult, even while it remains legal.
Missouri:
Missouri is the only state with a total ban to pass an abortion rights ballot measure, restoring pre-viability abortion rights for Missourians. Once in effect, the measure will protect abortion rights pre-viability and bar governmental discrimination based on reproductive healthcare. Early reports indicate that Planned Parenthood in the state is hoping to resume abortion services as early as December.
Nebraska:
In Nebraska, where two competing measures were on the ballot, voters unfortunately passed an anti-choice measure enshrining the state’s current 12-week abortion ban. The other measure, which would have protected abortion rights pre-viability failed to pass. Throughout the ballot measure process, there has been reporting about signature gatherers engaging in willfully misleading conduct to misrepresent the 12-week measure as a pro-choice amendment and questions remain as to whether confusion played a significant role in the outcome of the election.
Nevada:
Nevadans voted to approve a ballot measure protecting abortion rights pre-viability; however, because of the state's procedural requirements for amending the constitution, it will require another passing vote in 2026 prior to the constitution actually being amended. Abortion is currently legal until viability in the state.
New York:
In New York, voters passed a landmark state equal rights amendment. In addition to protecting abortion rights, it will prohibit discrimination on the basis of pregnancy, pregnancy outcomes, and reproductive healthcare decisions, as well as ethnicity, national origin, age, disability, sexual orientation, gender identity, and gender expression. This creates a critical legal foundation for protecting the equal protection, privacy, and due process rights of New Yorkers from both in and out-of-state government interference.
South Dakota:
In South Dakota, an abortion rights ballot measure that would have effectively codified the Roe standard did not pass. Abortion will continue to be totally banned in South Dakota.
Legislation & Litigation:
Wisconsin Hears Oral Argument on 1800’s Ban:
This week, the Wisconsin Supreme Court heard oral arguments on the question of reviving an 1849 abortion ban that was previously struck as unenforceable. Sheboygan County District Attorney Joel Urmanski asked the high court to overrule that decision. However, with the election of Justice Janet Protasiewicz, the court currently has a liberal majority and is likely to rule against the ban. During oral arguments, the justices appeared unpersuaded that a 175-year-old law, enacted when women had zero political agency, should supersede a duly passed 1985 law prohibiting abortion post-viability. The justices will soon hear a separate case on whether the state constitution protects the right to abortion.
Ohio Strikes Down 6-Week Ban:
Following last year’s passage of Ohio’s abortion rights amendment, a judge has struck down the state’s ban on abortion after 6-weeks. Judge Christian Jenkins found that the ban was unconstitutional in light of the new amendment and issued a permanent injunction on its enforcement. This process of challenging legislation in light of newly passed abortion rights amendments will be repeated throughout the other states that passed amendments during last week’s election.
Louisiana Faces Lawsuit Over Abortion Pill Reclassification:
Louisiana is facing a lawsuit over the state’s reclassification of abortion medication drugs mifepristone and misoprostol as controlled substances. The reclassification places medically unnecessary restrictions on the drugs and makes it more difficult to access them in emergency situations, like postpartum hemorrhage. The plaintiffs in the case point to the fact that abortion is already entirely banned in Louisiana and argue that the reclassification does nothing to advance abortion restrictions, but instead places unnecessary burdens on the healthcare system, which will inevitably harm patients and providers. You can read the complaint in full here.
Biden Administration Pushes Back in Ongoing Mifepristone Lawsuit:
The Biden Administration is opposing Idaho, Missouri and Kansas’s attempt to revive the Alliance for Hippocratic Medicine lawsuit seeking to restrict access to mifepristone. The case, which went up to the Supreme Court earlier this year, was thrown out for lack of standing–meaning that the original plaintiffs could not show that they were actually injured by the FDA’s approval of mifepristone, and the case has to be dismissed. Now, Idaho, Missouri, and Kansas are seeking to revive the case with an Amended Complaint. However, the Biden Administration and the defendants in the case correctly argue that the three states, who do not independently have standing, cannot intervene in a case where the original plaintiffs have been found to lack standing. And, even if the states could somehow create standing where there is none, they are not properly venued in the Northern District of Texas, as none of the events related to the lawsuit occurred there, nor are the defendants or plaintiffs located there.
Pregnant Kentucky Woman Challenges State’s Abortion Bans:
A pregnant Kentucky woman seeking abortion care has filed a lawsuit challenging two of the state’s abortion bans. She argues that the laws in question infringe on the state’s constitutionally protected rights to privacy and self-determination. In addition to vindicating her own legal rights, she is seeking to certify a class of all pregnant people in Kentucky who are unable to access abortion, alleging that all suffer medical, constitutional, and irreparable harm as a result of the laws. The challenged bans prohibit abortion at all gestational ages and subject providers to criminal prosecution if they are found to be in violation.
Trend & Policy Watch:
The Biden Administration Proposes Expanded Birth Control Coverage: The Biden Administration has proposed a new rule that would expand Affordable Care Act coverage for birth control. The rule would require private health plans to cover over-the-counter birth control without cost sharing, and improve coverage for prescription birth control. As the country faces the looming potential of a federal abortion ban, access to low or no-cost birth control is critical.
Parental Rights and Abortion: In the run-up to last week’s election, anti-abortion activists and politicians continued the rhetoric that expanding abortion rights would detract from parental rights. This is a messaging strategy that has been employed to push back against both abortion rights and trans rights for minors. And while it may be an effective tactic, it is not accurate. The passage of abortion ballot measures does little to affect state requirements for minors obtaining care, and minors in every state already have the right to circumvent parental notice and consent requirements via the judicial bypass system.
Texas and Trans Rights: Odessa, a small Texas city, has passed an ordinance authorizing a $10,000 ‘bounty’ on transgender people using the bathroom that correlates with their gender identity. Mimicking the state’s abortion bounty hunter law, it grants individual citizens a private right of action to bring suit, with no need to show that they have suffered any harm. This continues an alarming trend of Texas taking aggressive state and local steps to curtail the rights of the LGBTQ+ community. Recently, Texas began rejecting name and gender changes on drivers’ licenses and collecting information on those who request such changes. And, A.G. Paxton has filed several lawsuits against doctors that he alleges have provided gender-affirming care in violation of the state’s ban.
Amarillo Voters Reject Anti-Abortion Measure: Voters in Amarillo, Texas have soundly rejected a city-level abortion travel ban. If passed, the proposal would have made it unlawful to use city roads to travel out of state to obtain legal abortion care–effectively attempting to trap abortion seekers in state. Although the Amarillo measure lost by a wide margin of 20 points, other counties in Texas have already passed abortion travel bans.
Connecticut Abortion Hotline: In the wake of last week’s election and the reality of an incoming abortion-hostile administration, Connecticut has taken steps to launch a hotline offering free legal advice to residents seeking reproductive health care information. The hotline will be staffed by attorneys from major law firms across the state.
Georgia Woman Tells Story of Miscarriage Under an Abortion Ban: Another woman has spoken out about her experience of being unable to receive timely and efficient miscarriage care during an acute health crisis. In this case, Avery Davis Bell suffered a second-trimester miscarriage and was forced to wait for hours while her condition deteriorated to a point where her care team could legally intervene. She survived–but not before losing significant amounts of blood. She was also required to consent to Georgia’s 24-hour abortion waiting period, because the doctors remained unsure about whether she was sick enough in the eyes of the law to waive the requirement. You can read her story here.
Emergency Contraception Sales Surge: In the wake of last week’s election, sales of emergency contraception have surged. Reportedly, Winx Health saw a 966% increase in sales of the morning-after pills in the days after the election, and Wisp, a reproductive telehealth company, had a 1000% increase from November 5-6.