Developments in Abortion, Autonomy, and Access:
This week’s Digest goes through important litigation developments impacting abortion access in states across the country, including a decision out of Missouri that paves the way for abortion to resume for the first time in years. We also discuss emerging research in the public health space post-Dobbs and policy battles that are ongoing at both the state and federal levels. As we continue to report on the news that is shaping the reproductive health landscape, we encourage you to share this resource with anyone in your own networks who may benefit from its analysis.
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This Week’s Must Read:
This week’s must-read story comes out of Missouri, where Republican lawmaker Phil Amato has proposed legislation that would mandate surveillance of pregnant people “at risk” of seeking an abortion. Specifically, the bill would require the state to “maintain a central registry of each expectant mother who is at risk for seeking an abortion . . . and make the same available to a prospective adoptive parent.” It is unclear how the state would define “at risk” pregnant people, but the creation and maintenance of a registry would clearly require surveillance of individuals’ private medical decisions and detailed demographic information. Last year, Missourians passed an abortion rights ballot initiative, legalizing pre-viability abortion; however, anti-abortion lawmakers continue to work to limit the scope of those protections.
Legislation & Litigation:
Overview:
A Missouri judge has overturned a state abortion clinic licensure requirement, allowing abortion clinics to reopen in the state;
Louisiana and Texas are continuing to pursue criminal and civil legal actions against a New York abortion provider;
The Eighth Circuit Court of Appeals has issued a ruling allowing a lawsuit challenging the Pregnant Workers Fairness Act’s protections for abortion patients to move forward;
An Indiana judge has temporarily blocked individual abortion records from being made public;
The Kansas Legislature has overridden Governor Kelly’s veto of a ban on gender-affirming care for minors;
The Georgia Supreme Court has sent a case over the state’s abortion ban back to the lower court to reevaluate the plaintiffs’ standing;
Montana lawmakers have introduced a bill that would criminalize traveling out of state for abortion care; and
GenBioPro, the manufacturer of generic mifepristone, has moved to intervene in the lawsuit challenging the FDA’s approval of the drug.
Missouri Judge Issues Ruling Allowing Clinics to Reopen:
A Missouri Judge has issued a ruling striking down the state’s clinic licensure requirement, which had functionally blocked abortion clinics from reopening in the state. Abortion has been largely unavailable in Missouri since 2022, when the Dobbs decision triggered the state’s abortion ban. However, last November, Missourians voted to pass an abortion rights ballot measure, which restored pre-viability access. Despite the passage of this measure, legislation severely restricting the conditions under which abortions could be performed remained on the books, including a requirement that clinics be licensed by the State. This medically unnecessary requirement meant that clinics like Planned Parenthood were unable to resume providing services. The ruling striking this requirement led Planned Parenthood to announce that it would resume services in Missouri. The state is likely to appeal.
Louisiana and Texas Continue to Pursue Legal Actions Against New York Doctor:
Texas and Louisiana continue to pursue legal actions against New York abortion provider Dr. Maggie Carpenter. Under the protection of New York’s shield law, Dr. Carpenter prescribed abortion pills to patients in Texas and Louisiana - two states with abortion bans in place. Texas brought a civil lawsuit against Dr. Carpenter in Collin County, Texas, arguing that she violated Texas’s abortion ban and practiced medicine in the state without proper licensure. The Judge in the case issued a default judgment ordering her to pay $100,000 in penalties and enjoining her from continuing to prescribe medication abortion to Texas patients. New York is standing behind Dr. Carpenter and refusing to participate in the out-of-state investigation into her provision of reproductive care, consistent with the requirements of its shield law.
Similarly, Louisiana has brought criminal charges against Dr. Carpenter based on her provision of care and is seeking her extradition to the state. New York Governor Kathy Hochul has declined to extradite, saying she would not sign the order, “not now, not ever.”
As we have reported on previously, the cases against Dr. Carpenter represent the first legal clashes between abortion ban states and shield law states. They will shape the future of these protections. Although the path forward is unsettled, legal action attempting to force New York’s participation in the out-of-state cases is all but certain.
Eighth Circuit Allows Lawsuit Challenging Abortion Protections to Move Forward:
The Eighth Circuit Court of Appeals has issued a ruling allowing a lawsuit challenging the Pregnant Workers Fairness Act’s application to abortion accommodations to move forward. The PWFA requires reasonable workplace accommodations for pregnant people, including time off for appointments for prenatal care or miscarriage recovery. Under the Biden Administration, the EEOC published guidance explaining that the PWFA’s pregnancy accommodations requirement also requires covered employers to allow time off to obtain an abortion and recover. The rule does not require the employer to pay for the procedure or even provide paid time off. Seventeen states brought a lawsuit challenging the rule, arguing that it illegally broadens the scope of the PWFA. A lower court dismissed the lawsuit for lack of standing; however, the Eighth Circuit revived it, finding that the states have a justiciable interest because they are regulated by the rule. Whittling away at employment protections is one tactic used by anti-abortion states and actors to narrow reproductive freedom and access to care.
Indiana Judge Temporarily Blocks Abortion Records from Being Made Public:
In the last Digest, we reported on Indiana’s dangerous decision to make individual abortion records public and the legal challenge that immediately followed. In a piece of good news, a Marion County judge has issued a temporary restraining order blocking the Indiana Department of Health from releasing the records for at least 10 days, while the case is considered. The providers behind the lawsuit argue that, in light of how few abortions are being performed in Indiana under the state’s ban, the patient information included in a pregnancy termination report could be reverse-engineered to identify individual patients, endangering their safety and privacy interests.
Kansas Legislature Overrides Governor’s Veto of Gender-Affirming Care Ban:
The Kansas legislature voted to override Democratic Governor Laura Kelly’s veto of a gender-affirming care ban for minors. Kansas is now the 27th state to attempt to ban such care, and the federal government has issued a slew of orders in the past month tightening restrictions and erasing protections for the trans community. Advocates and families of transgender youth are likely to challenge the law in court.
Georgia Supreme Court Sends Case Over Abortion Ban To Lower Court to Reconsider Standing:
The Georgia Supreme Court is sending a challenge to the state’s heartbeat ban back to the trial court on the question of standing. The ban has been the subject of litigation for several years, with advocates arguing that it is unconstitutional under Georgia’s privacy protections. However, in January, the Georgia Supreme Court issued a decision in a separate case that altered state jurisprudence on the question of third-party standing. In light of that ruling, the justices voted to send the case back to the trial court to reconsider whether the plaintiffs, including lead plaintiff SisterSong Women of Color Reproductive Justice Collective, are properly before the court.
Montana Introduces Bill Criminalizing Traveling Out of State for Abortion Care:
A bill introduced in Montana would make it a criminal offense to travel out of state to receive abortion care - even when that care is legal. Relying on misleading “trafficking” language, House Bill 609 would criminalize transporting, or aiding a person in transporting, “an unborn child that is currently located in [Montana]” to obtain an abortion that would be illegal in Montana. If passed, this would be the first time that a state has criminalized the act of traveling out of state for legal abortion care. Unlike abortion trafficking bills passed in Tennessee and Idaho, this law is not cabined to assisting minors over state lines; instead, it defines the fetus itself as the trafficked party.
At present, Montana allows abortion until fetal viability. However, under HB 609, if a person were to discover a fetal anomaly later in pregnancy and travel out of state for healthcare, they could be prosecuted and face jail time of up to five years. Although it is unclear at this time how much support the bill has, at a hearing, two proponents testified in favor of the bill, while over two dozen offered comments opposing it. We will continue to report on this bill as it moves through the legislative process.
The Manufacturer of Generic Mifepristone Moves to Intervene in Lawsuit:
GenBioPro, the manufacturer of generic mifepristone, has filed a motion to intervene in Missouri et al. v. FDA, the case previously known as Alliance for Hippocratic Medicine v. FDA. The previous iteration of the case was thrown out by the U.S. Supreme Court for lack of standing. But, Northern District of Texas Judge Matthew Kacsmaryk allowed Missouri, Kansas, and Idaho to continue the suit, despite glaring issues in the states’ standing and venue arguments. GenBioPro seeks to defend the FDA’s approval of mifepristone and preserve access to the drug.
Trend & Policy Watch:
ProPublica Reporting Shows Sepsis Rates in Pregnant People Skyrocketed Under Abortion Bans:
New reporting from ProPublica shows that rates of sepsis in pregnant Texans have dramatically increased under the state’s abortion bans. Using the methodology detailed in the reporting linked above, their findings showed an increase in sepsis rates of 55% from comparable time periods before and after the state’s first abortion ban went into effect. The “surge was most pronounced in cases in which the fetus may still have had a heartbeat when the patient arrived at the hospital.” Post-Dobbs, countless stories have been reported of pregnant patients being denied miscarriage care until fetal cardiac activity ceases, as their providers fear legal reprisal for acting too early under the law. ProPublica’s reporting is particularly critical as the Texas Maternal Mortality and Morbidity Review Committee has declined to review pregnancy outcomes data for 2022 and 2023.
Progressive States Work to Pass Marriage Equality:
Several states are working to pass ballot measures constitutionally protecting marriage equality amidst rising concerns over the security of lgbtq+ rights. At least nine states have introduced measures aimed at undoing marriage equality protections. Lawmakers in Michigan, Idaho, Montana, North Dakota and South Dakota have called on the Supreme Court to reverse Obergefell, the decision that legalized gay marriage. Four other states have proposed legislation that would create “covenant marriage” - a category of marriage available only between one man and one woman. In response, advocates across the country hope to take the issue directly to the voters via ballot measure, a strategy that is likely to yield success, as data shows that the vast majority of Americans continue to support marriage equality.
Comprehensive Update on Policy Developments at the Federal Level:
The federal government has undergone a fundamental paradigmatic shift in the past month. Through a slew of executive actions, the government has aggressively targeted trans rights and so-called “gender ideology”, moved to dismantle diversity, equity, and inclusion efforts in the public and private sectors, and attempted to implement widespread funding freezes. For a comprehensive update on where things stand one month into the new administration, read here.
Cuts to USAID Threaten the Lives of Thousands of Pregnant People Worldwide:
On January 20th, the new administration issued a 90-day pause in U.S. foreign development assistance, halting urgent work worldwide and threatening the lives of thousands of pregnant people. This freeze in funding disrupts critical programs that distribute contraception, provide life-saving healthcare for pregnant women, and facilitate healthcare initiatives for low-income and developing nations. According to Amy Friedrich-Karnik, director of federal policy at Guttmacher Institute, “[e]very single day that the freeze is in place, there are 130,000 women who are being denied contraceptive care.” Guttmacher estimates that if the USAID funding lasts the full 90 days, around 4.2 million women will experience unintended pregnancies, and “8,340 will die from complications during pregnancy and childbirth.”
Education Opportunities Around Patients’ Rights and ICE in Healthcare Settings:
Before we end this week’s Digest, we wanted to uplift two trainings being hosted by coalition partner organizations on the subject of how to protect patients when ICE enters healthcare settings. Please see below for more details:
On Tuesday, March 4 at 5:30pm PST / 8:30pm EST - Service Employees International Union (SEIU) is hosting a workshop designed specifically to provide healthcare providers with legal guidance and resources for responding to ICE in healthcare settings. Register and join to learn more about how you can assert your rights as a physician while defending patient care.
On Thursday, March 6 at 5:00pm PST / 8:00 pm EST - Doctors For America (DFA) is hosting a training designed to understand how immigration status impacts healthcare access and how our Healthcare Advocacy Toolkit can be used in clinical settings. Attendees will have a chance to discuss civic engagement with patients and examine potential threats under new federal immigration policies. Register here.