Developments in Abortion, Autonomy, and Access:
This week’s Digest is full of important state-level news, as legislative sessions take shape, litigation progresses, and ballot initiatives advance across the country. There is a lot to cover, particularly in our ‘Other News in Access’ section, so please read on for the reproductive health news that you need to know. As a quick housekeeping note, starting this week we will be switching up our normal Digest schedule to publication on Thursday rather than Friday. From all of us here at L4GG, thank you for your continued readership and support of our work!
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Legal Changes at the State Level:
Brief Overview:
Alliance for Hippocratic Medicine v. FDA: The U.S. Supreme Court has set oral argument in Alliance for Hippocratic Medicine v. FDA for March 26, 2024. The outcome of this case will impact the availability of medication abortion nationwide. The DOJ is urging the Court to preserve access, pointing to the drug’s excellent safety record, while the anti-abortion groups behind the lawsuit argue that medication abortion is dangerous and its use should be curtailed and highly regulated.
Wisconsin: Wisconsin lawmakers have proposed a referendum to institute a 14-week abortion ban in the state. At present, abortion is legal until around 20 weeks gestational age.
Abortion Trafficking in Oklahoma and Tennessee: Lawmakers in both Oklahoma and Tennessee have introduced abortion trafficking bills, following in Idaho’s legislative footsteps.
North Dakota: A North Dakota judge has declined to block the State’s total abortion ban for cases where a physician uses their good faith medical judgment to determine that an abortion is necessary to avoid high-risk complications. The plaintiffs in the case argue that the ban’s exceptions are too narrow and do not comply with the State Constitution.
Deeper Legal Analysis
Wisconsin:
Current Wisconsin law permits abortion until around 20 weeks gestational age; however, state lawmakers have proposed a referendum to institute a 14-week ban in the state. The measure has been passed by the State Assembly and will now go to the Republican-controlled Senate for approval. It will then go before Governor Tony Evers, who has vowed to veto it, stating that the people of Wisconsin have already made their views on abortion clear. If, however, the measure makes it past a veto, it would be voted on by the citizens during April elections, requiring a majority vote to pass.
The proposed bill would prohibit abortion after 14 weeks absent a narrowly defined “medical emergency.” It would also mandate that in cases of medical emergency after 14 weeks, the physician must terminate the pregnancy in a manner that provides the unborn child the greatest likelihood of survival, unless that method imposes increased risk to the pregnant person. In other words, even in cases where the fetus is not even close to viability, a provider could be forced to induce labor or perform a c-section rather than provide a termination.
As a reminder, immediately after Dobbs, Wisconsin Republicans began arguing for enforcement of a total abortion ban from 1849. A state judge ruled last year that the 1849 law only applies to feticide and does not apply to consensual abortions, giving abortion providers in the state the legal protection necessary to begin resuming services for the first time in over a year. Additionally, last year Wisconsinites elected Justice Janet Protasiewicz to the State’s high court–Justice Protasiewicz made her support for abortion rights clear on the campaign trail. Justice Protasiewicz’s addition to the court gave liberals a 4-3 majority at a time when abortion-related litigation is making its way to the Justices’ desks.
Abortion Trafficking in Oklahoma and Tennessee:
Oklahoma and Tennessee have joined Idaho in introducing abortion trafficking laws aimed at prohibiting the transport of minors to another state in order to obtain an abortion. We have discussed these kinds of bans a great deal in this Digest, but they are a hallmark of post-Dobbs anti-abortion legislation and litigation. With the fall of Roe, state legislators are empowered to pass increasingly draconian legislation regulating access to reproductive healthcare, and litigation over abortion rights has shifted to the previously uncharted territory of interstate travel.
Although Tennessee and Oklahoma both currently ban abortion at all gestational ages, legislators in the states are seeking to enforce those restrictions across state lines. Oklahoma’s proposed law would criminalize aiding a minor in obtaining an abortion in another state, regardless of whether abortion is legal in that state or whether the minor consents to the travel and the procedure. The bill, which carries a potential prison sentence of 2-5 years, is written in broad language intended to intimidate anyone who would otherwise assist a minor in accessing abortion care. Tennessee’s proposed law would similarly bar anyone other than a minor’s parent or legal guardian from helping them cross state lines for an abortion. In Tennessee, those found in violation could face up to 15 years in prison. So-called abortion trafficking laws don’t just impact trusted adults who might help a minor family member or friend–they also take aim at abortion funds. These funds are an absolutely critical resource in ban states, as individuals are forced to travel long distances, often requiring time off work and away from their families, in order to safely obtain reproductive health care.
Although the enforceability of these laws remains an open question, the goal is that the threat of enforcement alone is sufficient to stop would-be helpers from stepping in. Americans have a constitutional right to travel between states– ‘abortion trafficking’ bills infringe on that right and invent a criminalization mechanism for otherwise legal conduct. Idaho’s identical law is temporarily halted by a state court that found that the state is not free to simply invent the crime of abortion trafficking; the final outcome of that case has not yet been handed down. Its outcome will be a bellwether for how these laws may fare in other states seeking to pen their citizens in and deprive them of their right to travel to access legal care.
North Dakota:
In North Dakota, a judge declined to block enforcement of the State’s abortion ban for emergency cases, as determined by the provider’s good faith medical judgment. At present, North Dakota is enforcing a total abortion ban with extremely narrow exceptions to preserve the life of the pregnant person or to prevent a serious health risk. As with many state abortion restrictions, the law is written in broad non-medical terms that leave providers with little to no clarity about the parameters of permissible care.
In the present case, the plaintiffs argue that the ban’s exceptions are too narrow to comply with the State Constitution, and that the law does not provide doctors with a discernible standard for when they can safely intervene without incurring legal risk. The North Dakota Supreme Court previously blocked another total abortion ban–the State’s trigger ban–finding that its failure to include exceptions for the life or health of the pregnant person was unconstitutional. The question now is how far do the State’s constitutional protections extend to protect pregnant people.
The failure of abortion-restrictive states to provide clear or workable exceptions to their bans has led to widespread confusion across the country and deterred physicians from providing best-practice care. Litigation over the scope of States’ obligations to preserve the life or health of the pregnant person has been one way that advocates have sought to provide clarity. The North Dakota case is progressing at the same time as the U.S. Supreme Court is set to take up the question of whether the Emergency Medical Treatment and Labor Act (EMTALA) requires providers to perform abortions in emergency situations regardless of state bans. Although the stakes and the legal arguments in the cases are distinct–one centers on North Dakota’s Constitution, and the other on the parameters of a federal law – both lawsuits are responsive to the healthcare disaster created by unclear and unsafe abortion laws.
What else is happening in access?
Abortion politics will be front and center during the 2024 election cycle. Experts are weighing in on how an anti-abortion executive branch could use its enforcement powers to decimate abortion rights, without the need for congressional approval or an outright abortion ban. President Biden and Vice President Harris have announced new plans to increase protections for reproductive rights, including abortion and contraception. Meanwhile, it seems that anti-choice Republicans are responding to the political backlash to Dobbs by deleting references to their position on abortion from their websites.
Idaho has one of the most severe abortion bans in the country–notable for its lack of exceptions for the health of the pregnant person or in cases of fetal anomaly. Now, an Idaho lawmaker has introduced a bill to also remove the rape or incest exception. If passed, this would render abortion only available to save the pregnant person’s life.
A new study reports that approximately 65,000 rape-related pregnancies have occurred across the 14 states with abortion bans in place. Even in states that have exceptions for rape or incest, the law often requires the victims to report the crime to law enforcement. And in practice, providers are wary of providing the care for fear of legal liability.
Washington state is preparing pharmacists to prescribe medication abortion, in a bid to improve access and alleviate the immense burden faced by abortion clinics in states where it remains legal.
Democrats in Kentucky unveiled a bill seeking to roll back Kentucky’s abortion ban; however, with the current Republican majority in the state legislature, passage is extremely unlikely. Proponents of the bill hope to galvanize activists in the state to continue to push for change.
The Iowa legislature has advanced a bill to ease requirements for state funding of ‘pregnancy resource centers.’ These centers have long been criticized for misleading tactics aimed at dissuading pregnant people from seeking an abortion rather than supporting those who wish to remain pregnant. In anti-abortion states, funding of these centers is a common strategy for lawmakers who wish to appear supportive of pregnant people while still legislating against reproductive rights
A group of transgender veterans have filed a lawsuit asking the Department of Veteran Affairs to include gender-affirming surgery in its medical health benefits for vets. Notably, the Department currently covers most non-surgical aspects of gender-affirming health care.
Four LGBTQ+ advocacy organizations have petitioned the U.N. over Texas laws that target the LGBTQ+ community.
The Ohio legislature overrode Governor DeWine’s veto of the state’s gender-affirming care ban, throwing the future of transgender adults and minors in the state into uncertainty.
Kate Cox, the Texas woman who was forced to flee the state to obtain an abortion after a devastating fetal diagnosis, has been invited to the State of the Union.
The Nebraska legislature has not reintroduced the 6-week abortion ban that it attempted to pass in the prior legislative session.
Abortion rights advocate Jessica Valenti wrote a critical piece about how state-sanctioned and misleading anti-abortion rhetoric is making its way into schools.
An Oklahoma lawmaker introduced a resolution that would enshrine in the state constitution that all rights associated with personhood begin at conception. Fetal personhood bills have popped up all over the country and could affect the availability of fertility treatments, the family law system, the criminalization of pregnancy, various tax provisions, and of course–abortion and other aspects of reproductive health.
A recent investigation has revealed that all 8 of the major pharmacy chains in the U.S. have turned over prescription records to law enforcement without a warrant, as the stores do not require employees to run records requests past their legal departments prior to complying. This poses a serious risk to patient privacy at a time when the threat of investigation or criminalization for those seeking care is all too real.
Issue of the Week: Ballot Initiative Updates
Ballot measures seeking to enshrine or remove protections for reproductive healthcare are underway across the country. While it is impossible to report on all of the movement while still keeping this Digest reasonably concise, we have covered some of the major highlights below, and we will continue to keep you updated as things progress.
Arkansas:
Arkansas’ Attorney General has approved language for a proposed ballot measure that would prohibit the state from restricting abortion prior to 20 weeks LMP, with exceptions for lethal fetal anomaly, rape or incest, and the life or health of the pregnant person. Proponents of the measure can now begin collecting signatures ahead of the 2024 election. A win for abortion rights in a solidly red state like Arkansas would be a huge win for the reproductive rights movement in the South.
Nevada:
A Nevada judge issued a ruling approving a proposed ballot initiative that would add protections for abortion rights until 24 weeks gestational age to the State Constitution. The measure can move forward to the signature gathering stage. Although abortion is already legal through 24 weeks by statute in the state, enshrining it into the constitution would cement those protections and remove them from the whims of changing legislatures.
Florida:
The Florida Department of State has verified that a ballot measure seeking to protect “pre-viability” abortion rights has received enough valid signatures to be put on the ballot this fall. However, the State’s highly conservative Supreme Court must also weigh in on the propriety of the proposed amendment’s language. The Court will hear oral arguments next month. Meanwhile, taking a cue out of Ohio’s book, Florida Republicans are trying to raise the threshold to pass a constitutional amendment from 60% to nearly 67%.
The State’s Supreme Court is also currently considering the constitutionality of a 15-week ban passed in 2022; the outcome of this case will determine whether Governor DeSantis’s six-week ban will pass into law. Floridians' efforts to protect abortion rights take on particular importance as state lawmakers continue to advance restrictions on abortion including introducing a new total abortion ban and attempting to pass fetal personhood laws.
Montana:
In bad, but not unexpected, news out of Montana, the State’s Attorney General has struck down a proposed ballot initiative protecting abortion rights as legally insufficient. Montanans Securing Reproductive Rights has petitioned the State Supreme Court to allow the ballot measure to advance towards the November ballot, arguing that the Attorney General’s comments exceeded his authority. The measure would prohibit the state from restricting abortion “pre-viability.”
Missouri:
In Missouri, efforts to get abortion before the voters have hit yet another roadblock. Anti-abortion groups have introduced a plan that would require a ballot initiative to win a majority in 5 of the State’s 8 congressional districts, rather than a simple statewide majority. With the State’s districts gerrymandered to favor Republicans, passage of this proposal could erect a significant barrier to any abortion ballot measure. Attempts to keep abortion off of the ballot by subverting direct democracy are not new, but they are alarming and will impact trust in the democratic process far beyond the issue of abortion alone.
Mississippi:
In Mississippi, House Republicans have approved a resolution that would revive the State’s ballot initiative process with an express exclusion prohibiting citizens from bringing proposals relating to abortion. In other words, if the resolution passes it would deprive Mississippians of their ability to utilize direct democracy to protect abortion, while allowing all other issues to be raised. Critics have lambasted the move as substituting the judgment of state legislators over the voices of state residents. Certain proponents of the resolution have expressed the somewhat baffling opinion that voters should not be allowed to express their will on abortion because Mississippi is the state that initiated the case that overturned Roe.