Developments in Abortion, Autonomy, and Access:
Reproductive rights law and policy are developing rapidly and in incredibly complex ways at both the state and federal levels. In order to accommodate the sheer volume of critical news, we are breaking from our normal Digest structure this week. Rather than taking a deep dive into a handful of key changes to the law, we have instead provided an overview of all of the top stories and legal developments, with the important context included. As we move forward through legislative sessions and an exceptionally important election year, we are constantly striving to find the most effective ways to consolidate and deliver the news that you need in a way that is accessible and efficient, and we always welcome any and all feedback from our readers!
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Reproductive Rights and Health Equity News:
Florida:
Last week, the Florida Supreme Court heard oral arguments about the propriety of ballot summary language for an initiative aimed at enshrining pre-viability abortion rights into the State constitution. Floridians Protecting Freedom, the coalition behind the ballot measure, has collected nearly 1 million signatures in advance of the deadline, exceeding the threshold necessary to satisfy state requirements. However, Florida Attorney General Ashley Moody has asked the state Supreme Court to block the initiative, arguing that the language used is unclear and too confusing to be put before the voters.
During oral arguments, the scope of the question on review was a narrow one: whether or not the proposed ballot summary was a fair and clear summary of the contents of the ballot measure itself. In other words–will the voters clearly know what they are voting for or against? The extremely conservative court appeared aware of their limited role in the question before them, repeatedly emphasizing that it was not one of ideology, but one of linguistic clarity. Whether or not the Justices feel abortion should be protected in the state of Florida does not enter the equation for the purposes of this particular fight.
The Justices seemed skeptical of the State’s argument that the ballot language is unclear. For example, although the Justices repeatedly used language borrowed from the anti-abortion movement, the Chief Justice also stated that “the people of Florida aren’t stupid, they can figure things out.” Chief Justice Muniz also referred to the initiative as “wolf that comes as a wolf,” rather than a wolf in sheep’s clothing, simultaneously indicating his negative feelings about abortion and his likely view that the ballot summary fairly represents the initiative’s contents. We will continue to report on this story as it develops.
Florida is one of several GOP-led states where advocates are attempting to get abortion on the ballot in 2024. The outcome of Florida’s initiative will impact abortion politics and access both within the state and throughout the rest of the country.
Missouri:
Missouri Republicans have blocked efforts to amend the State’s total abortion ban to include an exception for rape or incest. While some lawmakers seek to mitigate the harm of the existing ban, others stand by it in its current form. During debate over the proposed amendment, Republican state Senator Sandy Crawford explained her opposition by stating that while rape can be mentally taxing, “God is perfect” and “does not make mistakes.”
Lawmakers also debated Democratic Senator Doug Beck’s proposal to permit abortion for victims under 12 years old. This led to a heated debate during which Republican Senator Bill Eigel suggested that the amendment would permit 1-year-olds to obtain abortions. Of course, 1-year-olds cannot become pregnant, but these are the kinds of arguments that anti-choice legislators are making to justify their positions.
Debate about the scope of Missouri’s abortion laws is happening against the backdrop of efforts to enshrine abortion in the State’s Constitution, and counter-efforts to make doing so more difficult, including Missouri Right to Life setting up a ‘snitch line’ for citizens to report signature gatherers.
South Carolina:
A South Carolina woman has filed a lawsuit against the State, challenging its ban on abortion after detection of a fetal heartbeat. The State’s abortion ban prohibits abortion after “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart.” ‘Fetal heartbeat’ bills have been criticized for legislating based on medically inaccurate representations of when in pregnancy the human heart forms and begins to ‘beat.’
Plaintiff Taylor Shelton argues that the language of South Carolina’s law is ambiguous because it is unclear whether it refers to the first detectable electrical activity, which occurs around six weeks, or the formation of the heart’s chambers, which does not occur until roughly nine weeks gestational age. Shelton was forced to travel out of state to obtain an abortion, because doctors in the state applied a narrow construction of the law and would not provide an abortion after 6-weeks. She urges the Court to resolve the ambiguity in her favor and find that the current law permits abortion until nine weeks into pregnancy.
Tennessee:
K Monica Kelly has joined other Tennessee women in directly challenging the State’s abortion ban, after being forced to travel out of state to obtain access. When Kelly learned that she was pregnant with her second child, she and her husband were initially thrilled; however, after a series of devastating fetal diagnoses, they made the difficult decision to terminate the pregnancy. As a result of Tennessee’s total abortion ban, Kelly was unable to obtain treatment in her home state.
Kelly’s experience navigating Tennessee’s abortion laws spurred her to join six other women in challenging the State’s ban, arguing that it is too narrow and that providers should be permitted to use their good faith medical judgment to determine when an abortion is necessary to treat a “critical or emergent health condition.” Similar cases brought directly by women who were denied abortions are being litigated in Idaho and Texas.
AHM v. FDA:
As the Supreme Court is set to hear oral arguments in the case challenging the legality of mifepristone for medication abortion, two key studies relied upon by lower courts have been retracted by the scientific journal where they first appeared.
Sage Publications retracted the studies after two subject matter experts conducted independent peer reviews in response to concerns raised by a reader about the studies’ validity and scientific rigor. The reviewers ultimately found that the studies suffered from fundamental problems that called into question their conclusions, which showed rates of mifepristone complications far higher than those reported in other studies. They also found that the authors of the studies failed to disclose existing conflicts of interest, despite the authors’ affiliations with anti-abortion groups that expressly advocate for the restriction of mifepristone and abortion generally. Although these studies were relied upon by the lower courts for the determination that the plaintiffs have suffered harm, the impact of the retraction on the ongoing litigation is likely to be minimal. The Supreme Court is not obligated to take the retraction into consideration, and the current Court has shown its willingness to rely on studies and voices that support its desired conclusion, to the exclusion of more credible data.
Oral argument in this case will be heard by the Supreme Court on March 26th. In advance of arguments, a multitude of groups and coalitions have come out in support of access to mifepristone, including a coalition of 24 attorneys general from across the country. The coalition’s brief argues that the Fifth Circuit’s ruling placing restrictions on access to the drug contradicts decades of data showing its safety and efficacy, and that limiting access to mifepristone goes against the public’s interest.
New Hampshire:
The New Hampshire House voted down a proposed bill that would have restricted abortion after 15 days, a point in pregnancy when it is all but impossible to know whether or not conception has occurred. Although the bill was unlikely to advance past the House, it is still important to watch what kinds of bills are being proposed. Proposed legislation reveals what lawmakers would be willing to do and pass, if they are able to garner the political capital to do so. The political makeup of state legislatures can change in any given election cycle, and the viability of such proposed legislation changes along with it.
West Virginia:
GenBioPro, the manufacturer of generic mifepristone, has filed an appeal with the Fourth Circuit, challenging West Virginia’s total abortion ban. At present, West Virginia bans abortion at all gestational ages, with extremely narrow exceptions, and it prohibits the use of medication abortion outside of those exceptions.
GenBioPro is urging the Court to overturn this prohibition on the grounds that the State’s law is preempted by federal regulations on the use of mifepristone. GenBioPro argues that the drug’s safety record is well documented and scientifically sound, and that West Virginia’s imposition of additional restrictions over what federal law requires violates the Constitution’s mandate that federal law act as the supreme law of the land. The outcome of this case will likely inform other states’ decisionmaking about whether to specifically limit access to medication abortion. And, the fight over access comes as the Supreme Court prepares to hear oral arguments in a case that will determine the future availability of the drug.
Fetal Personhood Laws:
Despite popular support for abortion rights nationwide, lawmakers are continuing to propose legislation limiting reproductive freedom, including fetal personhood laws. Fetal personhood laws seek to define life as beginning at fertilization and endow fetuses and embryos with all the rights and protections of a person. They can be used as a backdoor way to restrict reproductive freedom and change the law on abortion by changing how personhood is defined.
In Kansas, lawmakers have proposed a bill that would allow pregnant people to claim child support throughout pregnancy, from the time of conception. To accomplish this, the law would change a Kansas family law statute to include an embryo at any gestational age in the definition of a child. Supporters of the bill purport to be interested in providing support systems for pregnant people. However, the reality is that fetal personhood laws intentionally pave the way for future restrictions on bodily autonomy and do so without drawing the public backlash created by explicit abortion bans.
Kansas lawmakers are not alone in their push for fetal personhood. Iowa lawmakers proposed a bill last week that would make causing the death or serious injury of an “unborn person” a class A felony, equal to first-degree murder in the State. Although the crime of harming a pregnant person is horrific, the bill would enshrine fetal personhood into state law and define an “unborn person” as having equal rights in the Iowa code. Prosecution of crimes against pregnant people can be (and is) accomplished by prosecuting the crimes on their own terms, without using the stories of victims as cover to pass anti-choice laws.
In Missouri, lawmakers have proposed their own version of a fetal personhood law. The bill would require a court to consider custody disputes over frozen embryos in favor of the party most likely to use the embryos to create a child. This kind of bill raises concerns over applying legal standards like the ‘best interest of the child,’ which is typically used in custody disputes, to unborn embryos. It also creates issues around consent by allowing a court to grant custody of an embryo to one parent, without the other genetic parent consenting to the use of that embryo to create a child.
Jackson, Wyoming:
Jackson, Wyoming has an abortion provider again–at least for the time being. At present, abortion is legal in Wyoming until ‘fetal viability,’ while the State’s attempted total abortion ban is on hold due to litigation. Despite the legality of abortion, however, providers who are willing and able to perform the procedure have been sparse. Dr. Katie Noyes’ story highlights why.
Although Dr. Noyes was willing and able to provide abortions in accordance with state law, her hospital told her last December that she could not provide medication abortions due to legal concerns. Dr. Noyes explained that the legal team had concerns over its doctors medical licensure or potential retroactive prosecution if the State’s total abortion ban was to go into effect. However, Dr. Noyes pushed back, reminding her hospital that the care that she would provide is absolutely legal in Wyoming at this time. As a result of her advocacy, her hospital reversed course, permitting her to provide care. At a moment when state abortion laws are constantly changing and purposely opaque, the responsibility to advocate for access all too often falls on the shoulders of individual providers. Clarity from lawmakers and support from hospital decision-makers is desperately needed.
Virginia:
In Virginia, where abortion is currently permitted until roughly the third trimester, lawmakers voted down a bill that would have banned abortion in all cases except to save the life of the pregnant person. Virginia currently has a Republican Governor who openly supports the passage of a 15-week abortion ban. However, last year Virginia Democrats managed to retain control of the Senate and flip control of the House. This retention of control allowed them to safeguard abortion rights in the State, a key access point for patients in the South.
Michigan:
Although Michigan protects abortion under the State’s Constitution, plaintiffs in the state have brought a lawsuit to challenge medically unnecessary laws that are still on the books, including 24-hour waiting periods and mandatory counseling requirements. The lawsuit was filed on Tuesday on behalf of the Northland Family Planning Centers and Medical Students for Choice.
New Study on the Impact of Abortion Bans on ObGyns:
In Wyoming, litigants challenging the State’s abortion ban have submitted a new study about the impact of abortion bans on ob-gyns. In addition to highlighting the negative impact of bans on the quality of patient care, the study also identified personal impacts on providers. These impacts included feelings of fear and worry over prosecution or loss of licensure, and consideration of moving out of state in order to continue practicing medicine. The study provides important insight into how restrictive legislation affects medical practitioners and their ability to provide the care that they are trained to give.
Location Data Shared:
An investigation conducted by Oregon Senator Ron Wyden revealed that a location data company tracked visits to 600 Planned Parenthood locations and provided that data to an anti-abortion ad campaign. Although location tracking for the purpose of targeted advertising is nothing new, the scope of this particular campaign is significant. And, data privacy for individuals seeking reproductive healthcare has taken on new importance as anti-choice states seek to aggressively investigate and curtail efforts to obtain abortion services and information.