Developments in Abortion, Autonomy, and Access:
This week’s Digest is coming to you a little earlier and shorter than usual as a result of the upcoming holiday, but we still have a great deal of news to cover. Anti-abortion groups have begun bringing lawsuits challenging state abortion protections, access-friendly states are responding to the election with multiple strategies to strengthen their abortion rights guardrails, and ProPublica has reported on yet another death resulting from Texas’s abortion bans. Please read to the end for the news that you need to know.
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This Week’s Must Read:
Unfortunately, this week’s must-read is yet another report of a woman killed by a state abortion ban. Propublica reported this week on the preventable death of 35 year old Porsha Ngumezi. When Ngumezi began experiencing significant bleeding 10 weeks into her pregnancy, she drove to an emergency room in Sugar Land, Texas, where it became clear that she was having a miscarriage. Despite heavily bleeding for hours, she was not offered a D&C–a standard procedure to complete a miscarriage that allows the uterus to close and bleeding to stop. ping bleeding. Instead, she was given misoprostol, a medication that is effective for low-risk miscarriages but may not be fast acting enough for cases involving a medically unstable patient. Ngumezi’s cause of death was found to be hemorrhage.
Texas doctors face up to life in prison for violating the state’s abortion law. Although the Texas legislature seeks to lay the blame for harm resulting from the ban at the feet of doctors, the state cannot write, pass and vigorously defend a vague, non-medical abortion ban that threatens doctors with life in prison and then claim ignorance or feign confusion over the well-documented consequences of that law.
Legislation & Litigation:
Minnesota Anti-Abortion Groups Suing Over State’s Abortion Protections: In Minnesota, a group of ‘pregnancy health centers’ doctors and individuals have filed a federal lawsuit challenging Minnesota’s abortion laws, which are some of the most accommodating in the country. In a lengthy complaint, the plaintiffs allege that the state’s laws violate the Fourteenth Amendment, because they interfere with the constitutionally protected relationship between parent and child–in other words, they argue that abortion is analogous to termination of parental rights. The lawsuit also makes certain fetal personhood arguments, including that Minnesota’s abortion laws deprive pregnant patients of the protection of the state’s murder statute, which criminalizes the intentional killing of a fetus in utero, with an exception for abortion.
Illinois Anti-Abortion Groups Bring Lawsuit Over State’s Coverage Requirement: The Thomas More Society, a conservative legal firm, has filed a lawsuit on behalf of several anti-abortion groups challenging Illinois’ requirement that insurance companies cover abortion. The lawsuit makes several arguments, including that the requirement violates the plaintiffs’ constitutional right to freely exercise their religious beliefs. The complaint also alleges that the rule violates the federal Comstock Act, because telehealth abortions are covered under the Illinois requirements. With the change in administration and the likely installment of anti-abortion politicians in key cabinet positions, legal challenges to abortion protections are likely to increase in frequency.
Wyoming Abortion Ban Judged Unconstitutional: Wyoming Judge Melissa Owens has struck the state’s total abortion ban and its ban on medication abortion as unconstitutional. Although the two laws have never gone into effect as a result of ongoing litigation, In her November 18th ruling, Judge Owens found that the laws violate Wyoming’s constitutional provision guaranteeing citizens the right to make their own healthcare decisions. Ironically, that constitutional amendment was originally passed in response to the state’s concerns about the Affordable Care Act, or Obamacare.
Federal Appeals Court Allows Indiana’s Ban on Gender Affirming Care for Minors: The Seventh Circuit Court of Appeals has ruled that the state’s ban on gender-affirming care for minors is likely to pass constitutional muster and can go into effect. Their ruling overturns the district court’s order blocking the State’s prohibition on hormone therapy and puberty blockers for minors from going into effect, while allowing it to enforce its prohibition on gender-affirming surgeries. The plaintiffs’, a group of transgender minors and their families and medical providers, challenged the constitutionality of the ban, arguing that it discriminates against transgender minors without sufficient governmental justification. The Court disagreed, declining to “constitutionalize” what it erroneously characterized as a “heavily debated medical treatment.” Nearly every major medical association supports gender-affirming care as a safe and effective treatment for transgender individuals.
Trend & Policy Watch:
Texas Proposes Legislation to Limit Access to Websites that Host Abortion Information: Texas Representative Steve Toth has once again introduced legislation that, among other things, would prohibit internet providers in Texas from hosting websites that provide information about abortion. The law specifically targets abortion funds. If passed, it would make it a criminal offense to pay or reimburse “costs associated” with abortion, and would prohibit merely providing information on how to obtain medication abortion. The bill's intended purpose of chilling any speech related to abortion, regardless of whether the speech is constitutionally protected, and criminalizing those who might help someone obtain an abortion is revealing of how far anti-choice lawmakers will go if they can garner the political capital. And despite broad anti-choice insistence that abortion is best left to the states, this proposed legislation fits a growing pattern of ban states attempting to stop their citizens from obtaining resources, information, or support to travel out of state and obtain lawful care.
Texas Looks to Reclassify Abortion Drugs as Controlled Substances: Texas appears to be following Louisiana’s lead in attempting to pass a law reclassifying mifepristone and misoprostol as controlled substances. The two drugs, commonly used for medication abortions, and have excellent safety and efficacy records. the states attempts at reclassification will place burdensome restrictions on accessing the drugs even in non-abortion related contexts. Doctors have explained that these burdens place patient care at risk.
Georgia Maternal Mortality Review Board Disbanded: Georgia has disbanded its Maternal Mortality Review Board, following reporting from ProPublica on two Georgia women who died as a result of the state’s abortion ban. Public Health Commissioner Dr. Kathleen Toomey stated that the information shared with ProPublica violated state law and confidentiality requirements, although an investigation has not identified how the information regarding the deaths was disclosed. Although the state will reopen applications for the committee soon, concerns have been raised about the chilling effect that the disbanding may have on information sharing and the loss of critical data that may occur while the MMRC is disbanded.
Maryland Expands Abortion Care Training: Maryland is implementing a program to train more advanced practice clinicians, including registered nurses, to provide abortion care. This training will help meet the needs of patients in rural counties that currently lack abortion providers and is responsive to the increase inpatients traveling to Maryland from states with abortion bans.
ACOG Guidance on Self-Managed Abortion: The American College of Obstetricians and Gynecologists has released new guidance on best practices for clinicians treating patients who may have undergone self-managed abortions (SMA). The guidance is aimed at preserving the sanctity of the clinician-patient relationship, preserving patient privacy and reducing risks of criminalization.
Oregon Stockpiling the Abortion Pill: In anticipation of an incoming administration hostile to abortion rights, Oregon has stockpiled enough abortion pills to last through 2028. Governor Tina Kotek has expressed her continued commitment to securing reproductive freedom for Oregonians, even as the federal landscape changes.
Anti-Abortion Groups Make Their Post-Election Goals Known: Post-election, Students for Life of America, a powerful anti-abortion group, has released its “Make America Pro-Life Again” agenda. The wishlist prioritizes restricting access to medication abortion restricting funding for abortion, including by reinstating a previous Trump Administration rule prohibiting Title X clinics from counseling patients about abortion.
Texas Challenge to Heartbeat Bill Could Be Thrown Out: Texas abortion rights advocates have been challenging the constitutionality of the state’s 6-week abortion ‘bounty-hunter’ law since 2021. Despite success at the state trial and appellate level, the Texas Supreme Court has now issued a ruling finding that the lower courts failed to consider whether the abortion rights plaintiffs had proper standing to bring their challenge. The case will now go back before the Third Court of Appeals for consideration of that question.