Developments in Abortion, Autonomy, and Access: 

This week’s Digest discusses ongoing litigation in Texas, Ohio, and Idaho, as well as new legislation out of Michigan. We also take a look at what is going on around the country in both abortion care and other bodily autonomy issues and do a deep dive into medically problematic proposed abortion regulations out of Iowa.

Legal Changes at the State Level: 

• Brief Overview: 

• Texas: On Tuesday, November 28, the Texas Supreme Court heard arguments about the scope of the State’s exceptions to its total abortion ban in a case brought by Texas patients who were denied abortions while facing severe pregnancy complications.

• Ohio: The Ohio Supreme Court has asked the parties to an ongoing lawsuit over the State’s fetal heartbeat ban to weigh in on how the passage of the new Reproductive Freedom Amendment impacts the constitutionality of that ban. This briefing will occur against a backdrop of Republican pushback to the passage of the Amendment and Democrat-led attempts to clear the way for its implementation.

• Idaho: Idaho has asked the U.S. Supreme Court to step in and allow the state to fully enforce its near-total abortion ban, which allows for the prosecution of medical providers in certain circumstances.

• Michigan: Michigan Governor Gretchen Whitmer signed a watered-down version of the Reproductive Health Act. The Act repeals outdated and medically unnecessary abortion restrictions in the state, including the requirement for providers to screen pregnant people for signs of being coerced into having an abortion and arbitrary building code requirements for facilities where abortions are performed. Governor Whitmer initially attempted to pass a more comprehensive bill that would have also rescinded a 24-hour waiting period for abortion seekers and allowed state Medicaid funding for abortions; however, Democrat Representative Karen Whitsett refused to vote in favor of those amendments.

Legal Analysis: 

• Texas: 

• This past Tuesday, the all-Republican Texas Supreme Court heard arguments about the proper scope of the life and health exceptions to the State’s otherwise total abortion ban. The suit, Zurawski v. Texas, was the first to be brought directly by pregnant people who were denied abortions in emergency situations. Since the suit’s inception, the number of plaintiffs has more than tripled, to twenty women and two doctors. Each of the patient plaintiffs in the case faced severe pregnancy complications, including diagnoses of lethal fetal abnormalities. Some of them had to travel outside of Texas in the midst of a health crisis to receive care,  others were forced to carry and gave birth to babies who survived only briefly outside of the womb, and others faced severely delayed care while their doctors had to wait until they became “sick enough” to invoke the state’s narrow exceptions.

• At present, Texas is enforcing a total abortion ban, with extremely narrow exceptions to save the life or health of the pregnant person. However, as we have discussed previously in this Digest, the exceptions are drawn in broad non-medical terms that do not provide sufficient clarity to providers who face prosecution and loss of licensure if they are found to be in violation. This lack of clarity has directly harmed each of the plaintiffs in the lawsuit, and undoubtedly countless other Texans. In August, Texas Judge Jessica Mangrum issued a ruling that the state’s ban cannot be enforced in cases of complicated pregnancies, including when the pregnancy poses a serious risk to the pregnant person, exacerbates an existing health condition or where there is a lethal fetal diagnosis. The State immediately appealed that ruling, placing it on hold. 

• During this week’s hearing in Austin, the State argued that the exception is sufficient as is, and that any harm incurred by the plaintiffs as a result of the law is the fault of overly risk-averse doctors, not the legislation. In other words: sue your doctors, not the State. In response, the Plaintiffs argued that the exception is written in broad unclear terms and that providers have been given no meaningful guidance on how to properly interpret it, forcing them to make decisions under threat of prosecution and loss of career. The State also argued that the Plaintiffs lacked standing, or the right to bring the lawsuit, because they are not currently seeking abortions. The attorney for the State seemed to suggest that in order to have standing to challenge the statute’s exceptions, a person would need to be actively facing a pregnancy complication and bring a challenge to court at that time. The Plaintiffs’ attorney rightfully pointed out the absurdity of requiring pregnant people in the midst of medical complications to obtain a lawyer and seek a judge’s order prior to receiving medical care or having standing to challenge a harmful statute. 

• Although the Justices peppered both sides with questions throughout the hearing and appeared skeptical of the State’s argument at several points, the Plaintiffs’ case faces an extremely conservative Court. The Justices did not indicate when they will rule, and it will likely be a matter of months before an order is handed down. 
  

• Ohio:

• As we reported in last week’s Digest, Issue 1 has passed in Ohio, constitutionally protecting abortion rights up until the point of “viability.” However, the final votes had hardly been counted before Republican lawmakers began suggesting ways to block the democratically passed Amendment from going into effect, including potentially stripping state judges of jurisdiction to hear cases interpreting the Amendment. It remains to be seen whether Republicans will move forward with these efforts. 

• Although Issue 1 should automatically go into effect 30 days after its passage on November 7th, its passage did not repeal the 30+ abortion restrictions that remain on the books. These laws include the State’s ban on abortion after detection of fetal cardiac activity, which is currently being challenged in litigation. Last week, the Chief Justice of the State Supreme Court ordered the parties to submit arguments on how they believe the passage of Issue 1 impacts the litigation. Of course, the legally apparent answer is that the Amendment now renders the fetal heartbeat ban unconstitutional. However, it is not clear that Republicans are going to honor that interpretation. Democratic lawmakers are hoping to avoid the need to go to court and fight over the continued constitutionality of each of Ohio’s abortion restrictions. To that end, they have called for or introduced legislation to repeal certain conflicting laws and restrictions, including the heartbeat bill. However, it appears unlikely that the Republican-led legislature will be willing to step aside and clear the way for a smooth implementation of Issue 1. 

• In case we needed further reminding that the fight for bodily autonomy affects us all, almost immediately after their loss on Issue 1, Ohio Republicans began targeting trans rights. Within two days of the Issue 1 vote, Republicans announced hearings on legislation that would target drag performances, gender-affirming care for minors, and bathroom access. As lawmakers fight to limit bodily autonomy across issue areas, it serves as a clear reminder that the fight to retain control over our bodies cannot end with abortion. 
  

• Idaho: 

• Idaho has asked the U.S. Supreme Court to weigh in on whether the state can fully enforce its near-total abortion ban, which permits prosecution or license revocation of doctors in certain circumstances. At present, Idaho bans abortion at all gestational ages, with narrow exceptions to save the life of the pregnant person or in cases of rape or incest. Last year, the Biden Administration sued Idaho on the theory that its law is in conflict with federal Emergency Medical Treatment and Labor Act (EMTALA) obligations, which require physicians to provide care to anyone who presents with an emergency situation. 

• In August of 2022, U.S. District Judge B. Lynn Winmill sided with the Biden Administration and enjoined the ban for emergency cases, citing concern that doctors would be put in an impossible position of complying with both a harsh state ban and federal obligations under EMTALA while trying to make quick life or death medical decisions. Although a 3-judge panel out of the Ninth Circuit Court of Appeals initially allowed the state to enforce the ban while the case goes through the litigation process, a full panel of the Circuit Court reversed course, putting Judge Winmill’s order back in place for the time being. The State has now asked SCOTUS to weigh in on whether it can enforce the totality of its ban. 

• If the High Court agrees to hear the case, it will be the first time since Dobbs that the Justices have substantively considered an abortion-related challenge, and certainly the first time that they have considered a case involving prosecuting providers directly. A ruling from SCOTUS would send a signal to the states about how far they can reasonably take sweeping abortion bans. If the Court declines to hear the case, it may indicate that it is less willing to become involved in disputes over state abortion legislation at this moment. 

• Since Dobbs, Idaho has become one of the harshest anti-abortion states in the country. In addition to its abortion ban, it has come under scrutiny for the passage of its first-of-its-kind abortion trafficking law, as well as the sweeping scope of its “No Public Funds for Abortion Act,” which has chilled academic speech across the state. The abortion trafficking law is currently enjoined; however, earlier this week, the state Attorney General asked that the law be allowed to take effect during the pendency of the litigation. 

More News in Access: 

• A North Dakota Judge has declined to block the state’s ban on gender-affirming care for minors.

• Advocates in Missouri presented arguments on why a religious challenge to the state’s abortion ban should stay alive in the face of the State’s attempt to have the case resolved in its favor. 

•  In Florida, a ballot initiative to protect abortion rights is underway, but faces obstacles in gaining the support needed to succeed. 

• A Nevada judge has struck down an initial effort to create a ballot question protecting reproductive rights. He stated in his decision that the proposed initiative was “too broad” because it encompassed all matters relating to pregnancy and therefore violated the single-subject rule. This same argument was raised and failed in Ohio earlier this year.

• The Supreme Court has declined to intervene and allow Florida to enforce its drag ban while the ban is being litigated, meaning that a lower court order will remain in place, and the law will not be operative for the time being.

• Two transgender boys have sued the University of Missouri for ceasing the provision of gender-affirming care. 

• Over 100 Congresspeople have signed on to an amicus brief urging the Supreme Court to restrict access to mifepristone. 

• A ballot initiative effort in Missouri to add a rape exception to the state’s abortion ban has drawn criticism for its proposed requirement that victims contact a crisis hotline in order to invoke the exception. 

• As we gear up for 2024, the Biden campaign says that it wants to use a second term to, among other things, finish the job of restoring abortion rights. 

• Even as abortion continues to be a winning issue, some anti-abortion lawmakers are willing to undermine the democratic process itself to restrict the right to choose. 

• This week, the dating app Bumble became the lead signee on an amicus brief in the case challenging Texas’ exceptions to its abortion ban. Bumble cited its duty to speak out and provided myriad examples of how abortion bans are bad for business and bad for Texans. 

• For a look at where ballot initiatives have been proposed thus far (although this list seems to be constantly expanding), read here.

• In Virginia, Democrats have proposed an abortion rights constitutional amendment, following their legislative win earlier this month.

Issue of the Week: Iowa and the Business of Politicizing Medicine

In Iowa, abortion is currently permitted until the 20th week of pregnancy. However, the State is fighting to enforce a ban on abortion after detection of fetal cardiac activity. That ban, which was signed into law by Governor Kim Reynolds in July, was pushed through in a single day-long special legislative session and came under heavy scrutiny for the rushed and politicized process. Although the so-called heartbeat ban very briefly went into effect after its passage, it is currently blocked by a Polk County District Judge while litigation over the ban's constitutionality plays out. The Judge blocked all of the ban’s substantive provisions, but he did allow the section of the law directing the Iowa Board of Medicine to adopt rules relating to the heartbeat ban to stand. On Friday, November 24th, the Board considered a set of such proposed rules and, although not final, they provide critically valuable insight into what it looks like when non-medical professionals attempt to regulate the practice of medicine against the backdrop of a politically charged legal battle. 

The purported intent of the  proposed rules is to establish “standards of practice for physicians who perform or induce abortions.” However, they diverge from standard medical practice in both substance and language used. For example, with respect to the determination of whether a fetal heartbeat is detectable, they would require the performance of an abdominal ultrasound; however, this is not standard medical practice for abortion cases. One of the legislators supporting the heartbeat ban acknowledged in hearing testimony that using an abdominal ultrasound to determine the presence of cardiac activity can be an imprecise business, with results varying based on a number of factors, including the patient’s weight. With respect to the rape or incest exception to the law, the rules would require the crime to have been reported within 45 days for cases of rape or 140 days for cases of incest. This suggestion ignores all credible data that shows that many survivors of assault do not or cannot come forward to report the crime against them. The rules also suggest requiring doctors to ask their patients questions such as “did the sex act constitute a rape” and who the rape was reported to, or whether the sex act occurred between closely related persons (incest). These questions are wholly medically unnecessary and problematically intrusive–medical providers are not charged with investigating or interpreting potential crimes. One Des Moines OB-GYN expressed that these requirements deviate from standard patient care by requiring a provider to ask questions “unrelated to the patient’s health and potentially asking [the patient] to prove their honesty” and “trying to put the physician in a position of interpreting these complex legal scenarios” which “prevents us from just providing the best care that we can to our patients.” 

The rules fail to provide any meaningful guidance whatsoever about what may constitute a medical emergency such that a health or life of the pregnant person exception may be invoked. We have seen this same lack of clarity play out to disastrous results in other states with similar abortion bans in place. In regards to invoking the lethal fetal abnormality exception, the rules proposed suggestions fail to engage with the complex reality of fetal medicine, which often deals with uncertainty and changing probabilities. For every provider who makes one determination as to lethality, the state could likely find an opposing physician to testify that they would have concluded the opposite. 

In response to the proposed rules, a group of over 100 Iowa physicians signed on to a letter expressing their “grave[]” concerns about aspects of the proposed guidance, including that the patient-physician relationship may be jeopardized by the requirement to “demand[] horrifying details” about a potential assault. The physicians also expressed concern that, although the law subjects physicians to potential discipline, the proposed rules fail to give any details about what that discipline may entail, forcing providers to operate with an ambiguous threat of consequence looming over their practice. A public comment period will be open from December 13 until January 2nd, should interested parties wish to express their views on the propriety of the proposed rules. 

The insertion of politics into medicine is at the heart of the fight for abortion rights, and the proposed guidance out of Iowa is emblematic of this tension.  We have seen legislation pass across the country that is grounded in medical inaccuracies, such as improperly labeling early electrical impulses as a “fetal heartbeat” and the use of political terms like “unborn child” instead of medically accurate ones like “fetus or embryo.” We have seen states like Texas force physicians to practice their craft pursuant to rules and regulations that detract from the standard of care that they were trained to give and are deleterious to the physician-patient relationship. The flow of trust in a healthy physician-patient relationship goes both ways, with the physician trusting the patient to accurately convey their needs and the patient trusting the physician to meet them. Abortion bans and other legislatively-derived restrictions on healthcare stand in the way of this trust and all of our care suffers as a result.