Developments in Abortion, Autonomy, and Access: 

A great deal has happened in reproductive health law in the past two weeks. Several state supreme courts heard abortion-related oral arguments, the Texas Supreme Court overturned a lower court's ruling that permitted a pregnant woman facing a lethal fetal diagnosis and severe complications to obtain an abortion, and new abortion rights lawsuits have been filed. At the federal level, the U.S. Supreme Court has agreed to hear the case brought by the Alliance for Hippocratic Medicine challenging regulations on mifepristone for medication abortion. Please read on for more details.

Legal Changes at the State Level: 

• Brief Overview: 

• Texas: Just days after the Texas Supreme Court heard oral arguments about the scope of the state’s abortion ban, a Dallas woman brought a lawsuit requesting an emergency order allowing her to obtain an abortion in light of a grave fetal diagnosis and increased risk to her own health and future fertility. Although her request was briefly granted, the State appealed, and the Texas Supreme Court ultimately denied her request.

• Ohio: Issue 1 went into effect on December 7th, adding constitutional protections for pre-viability abortion in the state. However, other contradictory laws have not been repealed, and at this time providers have indicated that they will continue to operate under the pre-Issue 1 law until those laws are removed from the books or a court issues an order finding them unconstitutional.

• Kentucky: Planned Parenthood and the ACLU filed a new lawsuit on behalf of a pregnant Kentucky woman seeking an abortion. The lawsuit directly challenges the State’s abortion ban. After filing the lawsuit, the original plaintiff learned that her embryo no longer had detectable cardiac activity; however, the lawsuit will continue, and the attorneys are asking other potential plaintiffs to come forward and join the challenge.

• Developments in Ongoing Litigation: A number of important abortion-related arguments have been heard in state courts across the country in the past two weeks, including in New Mexico, Wyoming, Arizona, and Indiana.

  • New Mexico: On Wednesday, December 12th, the New Mexico Supreme Court heard oral arguments about whether cities and counties can pass local abortion bans, despite abortion being legal in the State. Proponents of the local abortion bans rely on the Comstock Act, a long-dormant 1873 law that bans the mailing of materials used for abortions. During the arguments, the Justices did not indicate which way they will rule, but they did at times appear extremely skeptical of the argument that cities can limit abortion in direct defiance of established state law.

  • Wyoming: The Wyoming Supreme Court is weighing whether pro-life activists and lawmakers can join the ongoing lawsuit about whether abortion is protected health care under the State’s Constitution. 

  • Arizona: In Arizona, the State Supreme Court heard oral arguments on Tuesday about whether an 1864 total abortion ban can be enforced post-Dobbs. Currently, abortion is legal until 15 weeks in the state. The panel of judges appeared mixed; however, several of the judges seemed persuaded by the argument that the current legislature never intended to ban abortion outright in the state.

  • Indiana: An Indiana Court of Appeals heard oral arguments about whether the State’s total abortion ban violates the Indiana Religious Freedom Restoration Act (RFRA). The suit was brought on behalf of Indiana Jews for Choice and other individuals whose belief systems permit abortion outside of what state law allows. Using religious freedom to fight for abortion rights is a unique strategy that we saw employed shortly after Dobbs. Although the pro-life movement often falsely claims religion as its own, the reality is that many religions have diverse and permissive views about abortion and the spiritual conceptualization of when life begins. 

• Mifepristone Update: The U.S. Supreme Court has agreed to hear the case challenging regulations on the abortion drug mifepristone. Access to the drug remains unchanged for the time being. 

Legal Analysis: 

• Texas: 

• Texas has been front and center in abortion news in the past few weeks, as the State argues over how to properly interpret exceptions to its total abortion ban. Mere days after the Texas Supreme Court heard oral arguments about the scope of the State’s ban in Zurawski v. Texas, 31-year-old Dallas woman Kate Cox brought a separate lawsuit requesting an emergency order allowing her to obtain an abortion. Ms. Cox petitioned for relief after learning that her fetus had Trisomy 18 and was unlikely to survive the pregnancy or live longer than a few moments outside of the womb. The complication with her pregnancy also significantly increased the risk to Ms. Cox’s own health and fertility, as alleged in the Complaint. Texas’s total abortion ban does not include an exception for cases of fatal fetal anomalies; instead, it only permits abortion to save the pregnant person’s life or prevent substantial impairment of a major bodily function. 

• Initially, Ms. Cox’s request was granted by district court judge Maya Guerra Gamble, who issued a temporary restraining order protecting Ms. Cox, her husband, and her provider. However, Texas Attorney General Ken Paxton filed a Petition to stay the order. AG Paxton also sent a letter to several Texas Hospitals threatening prosecution for assisting in providing the procedure, despite the lower court order allowing it. The State Supreme Court granted Paxton’s request for a stay and ultimately denied Ms. Cox’s request for an order permitting an abortion. In its unanimous Order, the Court found that a “good faith belief” by Mrs. Cox’s doctor that the procedure was medically necessary was insufficient to invoke the exception to the State’s ban. The Court offered little guidance on when the exception would apply, but did state that “[s]ome difficulties in pregnancy…even serious ones, do not pose the heightened risks to the mother the exception encompasses.” The Court came to this conclusion despite Ms. Cox’s physician’s determination that her patient’s life, health and future fertility were all placed in jeopardy by continuing the pregnancy. While awaiting the ruling from the State Supreme Court, Ms. Cox was forced to leave the state to obtain the care she needed without further delay. 

• As noted above, Ms. Cox’s legal battle unfolded within weeks of the State’s arguments in Zurawski v. Texas, the case challenging the scope of the State’s exception to its abortion ban. During the Zurawski hearing, the attorney for the State seemed to argue that in order to have standing to challenge the State’s abortion ban, a pregnant person in the midst of a health crisis could petition the court for emergency relief. That is exactly what Ms. Cox did, and instead of showing that the State’s abortion ban is workable, as Texas has steadfastly insisted, it made apparent that judicial involvement in medical decision-making harms patient care. By placing its own judgment over that of Ms. Cox’s doctor and the families’ own wishes, the State would have Ms. Cox continue to carry a doomed pregnancy and face potentially severe harm to her own health and her ability to have more children in the future. The cruelty cannot be overstated. 

• Ohio:

• As we have reported on extensively, Ohioans passed Issue 1 in November, enshrining “pre-viability” abortion rights in the State’s Constitution. Issue 1 officially took effect on December 7th. However, other contradictory laws, including the State’s attempt to ban abortion after detection of a fetal ‘heartbeat’, and the currently enforced 20-week abortion ban, have not been repealed. Although it seems that Ohio Republicans have backed off of some of their initial suggestions on how to block Issue 1’s effectiveness, including stripping the judiciary of jurisdiction to hear cases related to it, the fight is far from over.

• Democratic leaders have introduced legislation to try and repeal contradictory and access-limiting legislation, including the fetal heartbeat ban. But, with a Republican-controlled legislature, it is more likely that advocates will have to go through the protracted process of having the courts evaluate each of the remaining laws and determine whether they are now void under Issue 1. At this time, despite the passage of Issue 1, providers have indicated that they will continue to operate under pre-Issue 1 law until the legislature repeals existing bans, or a court issues an order finding them unconstitutional. This means that for now access in Ohio remains functionally unchanged.
  

• Kentucky: 

• In Kentucky, Planned Parenthood and the ACLU have filed a new lawsuit on behalf of a pregnant Kentucky woman seeking an abortion. The plaintiff is directly challenging the State’s total abortion ban and fetal heartbeat ban. After filing the lawsuit, the initial plaintiff learned that her embryo no longer had detectable cardiac activity, meaning that the State will likely argue that the case is moot and should be dismissed. However, the ACLU has indicated that they do not plan to drop the suit. Brigitte Amiri, deputy director of the ACLU’s reproductive freedom project highlighted the importance of patient-led lawsuits, and has called on other Kentuckians who need an abortion to come forward and join the suit. 

• Suits led directly by pregnant people have been a growing trend in the past few months, with notable litigation coming out of Texas. These suits have the advantage of avoiding the standing questions that arise when the provider brings the case, rather than the patient themselves. In fact, Kentucky abortion clinics attempted to sue over the State’s ban last year, but the State Supreme Court ruled that they did not have standing to bring the claim on behalf of their patients. The present lawsuit will avoid that particular challenge. Instead, the initial plaintiff and any others who may join, argue directly that Kentucky’s trigger ban and six-week ban are unconstitutional under the State’s guarantee of liberty, which they persuasively allege encompasses rights to privacy and self-determination. Unlike the suit out of Texas, which brings a limited challenge to clarify the scope of the life and health exception to the State’s abortion ban, the Kentucky suit challenges the abortion bans in their entirety. This will be an important one to watch as litigation over post-Dobbs bans ramp up into the new year. 

• Mifepristone Update:

  • On Wednesday, December 13, the Supreme Court agreed to hear the case challenging the FDA’s approval of mifepristone for use in medication abortions. Notably, the Court will not take on the question of the FDA’s original 2000 approval of the drug. Instead, it will consider whether the FDA acted improperly when it eased restrictions on the drug’s use, including permitting it to be prescribed via mail. It will also consider questions about whether the plaintiffs, a group of anti-choice providers and provider groups, have standing to bring the challenge when they themselves do not prescribe abortion medication to their patients. The High Court agreed to hear this case a year and a half after it purported to wash its hands of abortion questions and return them to each individual state. 

  • As a quick refresher, the plaintiffs strategically brought this case in the Northern District of Texas, in front of Trump-appointee Judge Matthew Kacsmaryk. Initially, they sought to not only restrict the use of mifepristone, but to have its FDA approval revoked altogether. Although Judge Kacsmaryk initially issued an order in their favor, the Fifth Circuit Court of Appeals later partially reversed that order, finding that the challenge to the 2000 approval was outside of the statute of limitations. While the appeal played out in the lower courts, the Supreme Court issued an Order staying the lower courts’ decisions until it had a chance to weigh in, preserving access to the drug for the time being. 

  • Following briefing and oral arguments, the Court will likely issue a ruling in the case by summer 2024. There is no way to know exactly how the Court will rule, but there is reason to be skeptical that the Court that overturned Roe will issue a favorable ruling. If the Court reinstates old restrictions on mifepristone–specifically, the requirement that it be dispensed in person-it will have devastating effects on the ability of patients in ban states to access care. This Digest will continue to post updates as briefing and oral arguments occur. 

More News in Access: 

• For information on ways in which anti-choice lawmakers and advocates have moved to restrict access to contraception, please read here. 

• A “brain drain” is occurring in conservative states that are waging a ‘culture war’ against free speech, diversity, and the right to healthcare. In increasing numbers, college-educated workers, including educators and physicians, are beginning to set their sights on more progressive states to call home. 

• Ohio finally removed the spousal exception for charges of rape. Representative Bill Dean was the singular “no” vote on the measure. He later told a reporter from USA Today that “I personally don’t believe that a man, if he’s married and has physical relations with his wife, that can be considered rape.” 

• Republicans in New Hampshire have proposed a 15-day abortion ban, which would effectively ban abortion from the time of fertilization. Although it is not likely to become law, it is an important reflection of anti-choice intent and the basic lack of understanding about how and when pregnancy detection is possible that undergirds so much anti-choice legislation. 

• For an update on Florida’s attempt at a ballot initiative, please read here. Although advocates are making significant progress, they face weighty challenges with the extremely conservative state supreme court. 

• Ohio legislators have passed a ban on gender-affirming care for minors and a sports ban; the bills will now go to the governor for signature or veto. 

• Business Insider investigated the predatory tactics of one group ‘Let Them Live,’ that purports to offer pregnant people money and support in exchange for agreeing to not have an abortion. However, the group has failed to fulfill its promises on numerous occasions, leaving women without the promised support and past the point in pregnancy where termination is an option. 

• 23 independent abortion clinics have closed in 2023, on top of the 42 that closed in 2022, leaving many states with no physical facility to obtain the procedure.  

• Wisconsin Governor Tony Evers voted to veto the State’s proposed ban on gender-affirming health care for minors. 

• An MD has provided important information and talking points on how to combat the most common anti-trans rhetoric and disinformation. 

• In Montana, advocates have launched an effort to protect abortion rights in the State’s Constitution. 

• In Missouri, lawmakers have begun pre-filing bills for the next legislative session, including one that would make it more difficult for constitutional amendments to pass in the State. This comes as advocates attempt to get a reproductive rights ballot initiative in front of Missouri voters. 

• A Wisconsin Judge affirmed her previous determination that an 1849 law criminalizing abortion in the state does not apply to ‘consensual’ abortions and does not impact care in the state. You can find that ruling here. 

• Interstate travel for abortion care has doubled since 2020, highlighting the difficulties that pregnant people are facing in accessing care and the continued need for accessible telemedicine.  

• In South Dakota, indigenous supporters of the rights of transgender and two-spirit people reflect on the significance of a failed anti-trans bill in the state.