Developments in Abortion, Autonomy, and Access:
In this week’s Digest, we discuss the Alabama Supreme Court’s ruling limiting access to IVF, proposed legislation that would restrict access to contraception and abortion, efforts to undermine direct democracy in states attempting to pass abortion-protective ballot initiatives, and many other critical news stories. As always, we cannot include everything in our detailed legal analysis, so be sure to read our ‘More News in Access’ section to stay up to date on all of the news that you need to know.
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Legal Changes at the State Level:
Brief Overview:
Alabama: In an unprecedented moment for the fetal personhood movement, the Alabama Supreme Court has issued a ruling finding that cryogenically frozen embryos are “children” under state law, throwing the legality of fertility treatments like in vitro fertilization (IVF) into question and causing Alabama providers to cease offering IVF services.
Oklahoma: The Oklahoma legislature has proposed a series of bills that, taken together, would criminalize “abortion trafficking”, make it more difficult to access emergency contraception and other kinds of birth control like IUDs, and further limit access to medication abortion.
AHM. v. FDA Update: The U.S. Supreme Court denied Kansas, Missouri and Idaho’s motion to intervene in the ongoing appeal challenging the legality of the FDA’s regulation of mifepristone. This is an important win, because one of the key arguments on appeal is whether the plaintiff medical practitioners have standing to bring the case at all. And, if the states had been permitted to join the appeal, they could use their own standing arguments to keep the case alive if the Supreme Court finds that the original plaintiffs lack standing. Although the States are not permitted to intervene in the appeal, Judge Matthew Kascmaryk allowed them to intervene in the original case at the District Court level.
Missouri and South Dakota: Ballot initiatives to protect certain abortion rights are underway in Missouri and South Dakota. However, both states’ legislatures are taking steps to make it more difficult for the initiatives to pass, even if they have popular support amongst a majority of citizens.
Wisconsin: In Wisconsin, Planned Parenthood is asking the State Supreme Court to issue a ruling invalidating an 1849 abortion ban and affirming that abortion is protected under the State Constitution. In 2023, Dane County Circuit Judge Diane Schlipper ruled that the 1849 law does not ban “consensual abortions” but only prohibits the assault of a pregnant person with the intent to kill a fetus. On February 20th, Sheboygan County D.A. Joel Urmanski appealed that ruling directly to the state Supreme Court, asking it to take the case without waiting for a ruling from the appellate court. Whatever procedural route it may take, the 1849 law will end up before the majority-liberal state Supreme Court this year.
Deeper Legal Analysis
Alabama:
The piece of reproductive health news dominating the headlines since our last Digest is, of course, the Alabama Supreme Court’s unprecedented ruling that frozen embryos are ‘children’ within the meaning of the law. The lawsuit was brought by three Alabama couples, each of whom had cryogenically frozen embryos at the Mobile Infirmary Medical Center. Those embryos were unfortunately destroyed when a patient at the facility entered the embryonic lab, removed several embryos, and dropped them on the floor. The families sued for wrongful death of a minor, and the trial court dismissed the claim on a finding that the statute does not apply to frozen embryos. The plaintiffs appealed, and the State Supreme Court reversed course, making the stunning determination that these embryos are children under the relevant law.
Throughout the majority opinion, Justice Jay Mitchell repeatedly referred to the embryos as “extrauterine children,” a seemingly made-up term to describe embryos that have not been implanted. In a concurring opinion, the Chief Justice repeatedly invoked his interpretation of Christian doctrine, citing directly to the Bible and relying on theological texts. Despite the Court’s sweeping declarations about the sanctity and protection of unborn life, the effect of the Court’s ruling is to devastate access to in vitro fertilization for Alabamians hoping to grow their families.
IVF is an extremely complex, financially taxing, and oftentimes deeply emotional process for the families going through it. An IVF cycle usually involves the creation of multiple embryos, of which some will not survive as a natural result of the human fertility process, and others may be frozen to preserve for possible later use or discarded based on their nonviability. Given this complexity, the Alabama ruling calls into serious question how doctors can continue to offer the treatment if the destruction or loss of an embryo is considered the death of a child under state law. As the lone dissenting justice put it: the ruling “almost certainly ends the creation of frozen embryos through [IVF] in Alabama.” Since, the ruling at least three facilities have ceased providing IVF treatment to their patients out of the justifiable fear of facing unpredictable legal consequences.
The ruling has faced intense and immediate backlash from healthcare providers, politicians, and advocates across the country. In response, Alabama legislators have proposed a series of bills to attempt to protect IVF access. The bills range from providing immunity from civil or criminal prosecution for healthcare related to IVF, to a bill expressly excluding extrauterine embryos from the definition of a child or person. The state Legislature’s rushed efforts to insulate IVF from the Supreme Court’s ruling may mitigate some of the harm that has already been done, but they also highlight the absurdity of the Court’s actions and put a glaring spotlight on the consequences of allowing medical decisions to be made by non-expert judges and legislators.
Outside of Alabama, the ruling also sounds alarm bells for individuals concerned that other states may follow suit. Amanda Zurawski, a plaintiff in the Texas case challenging the State’s exceptions to its abortion ban, has stated that she will move her frozen embryos out of Texas for fear that Texas may take steps to limit access to IVF. In Florida, lawmakers have halted a Republican-led bill that would have defined fetuses as “unborn children,” amid rising concern over the impact it would have on fertility treatments.
Advocates have long argued that fertility treatments and access to contraception are the next targets of the anti-abortion movement. The Alabama Supreme Court’s ruling is a stunning validation of that concern. Fetal personhood laws–laws that seek to grant fetuses and embryos full and equal rights under the law–are a powerful way that anti-abortion activists and lawmakers are working to limit access to reproductive healthcare without explicitly passing wildly unpopular bans or restrictions.Oklahoma:
The Oklahoma legislature has been extremely active in proposing anti-abortion bills this legislative session. Although it is not yet clear how many will pass and what their final language will be, the series of bills, taken together, could severely restrict access to abortion, contraception, and fertility treatments.
One bill, HB 3216, has raised concerns about access to both emergency contraceptives like Plan B and intrauterine devices (IUDs). The bill was introduced by Republican Rep. Kevin West, who crafted it with assistance from the Alliance Defending Freedom, the anti-abortion group behind the federal case challenging the legality of medication abortion. In its current form, the bill defines pregnancy as beginning at fertilization, rather than implantation, and would ban any form of contraception that may interfere with implantation. State Representative Trish Ranson expressed her concern that, if passed in its current form, the highly restrictive language of the bill would effectively ban IUDs and emergency contraception. When questioned about these concerns, Rep. West said that the bill was intended to target “over-the-counter items that are not always safe for everybody.” Notably, Plan B–the ‘morning after’ pill that anti-abortion groups falsely claim causes abortions–is an over-the-counter medication. The bill also includes strict reporting requirements for physicians, which have raised concerns about the creation of a statewide ‘database’ of pregnant people who have obtained an abortion.Another Oklahoma bill, HB 3013, takes aim at medication abortion by allowing prosecutors to charge individuals with felony trafficking if they possess or deliver the drug with the knowledge that the recipient intends to use it to induce an abortion. Although proponents of the bill insist that it is intended to protect women, it seems to clearly target those individuals who would help pregnant people self-manage their abortion as a result of the State’s abortion ban.
In addition to proposing a trafficking law for medication abortion, Oklahoma is following Idaho’s lead in attempting to pass a so-called “abortion trafficking” law. SB 1778 uses broad language and targets anyone who would help a minor go out of state to obtain an abortion without the consent of their parent or guardian. This would mean that a trusted friend or relative would be charged with trafficking, regardless of the pregnant person’s own consent to the abortion and related travel.
As legislative sessions progress, it is critical to be mindful that although outright abortion bans may not be passing at the rate that they did in 2023, lawmakers are quietly introducing bills that radically restrict access to all aspects of reproductive care–Oklahoma is far from alone in this effort..
Missouri and South Dakota:
Efforts to enshrine abortion rights into the state constitution in Missouri and South Dakota are being met with anti-choice efforts to stymie the democratic process.
In Missouri, the road to the ballot box is proving to be a long one, with advocates debating what kinds of protections to include in a ballot initiative and anti-abortion lawmakers attempting to block any pro-choice measure from moving forward. The latest opposition comes in the form of a Republican-led effort to make it more difficult to amend the State Constitution. Under current Missouri law, a ballot initiative only needs a majority vote statewide in order to pass. However, the State senate has passed a measure that would require both a majority statewide vote and a majority vote in five of the State’s eight congressional districts. This measure will now go before the Republican-controlled House. If the proposal passes through both chambers of Congress, it will then go to the voters. Some Republicans are reportedly hoping the proposal will appear on the August ballot and be passed in time to block efforts to enshrine abortion rights into law in November. Missouri’s attempt to raise the threshold for the passage of abortion rights mirrors the unsuccessful attempt by anti-choice lawmakers in Ohio to do the same last year in the face of an abortion ballot initiative.
Missouri is currently enforcing a total abortion ban. And, on Thursday, February 29th, Attorney General Andrew Bailey announced that he has filed a lawsuit against Planned Parenthood accusing it of ‘trafficking’ minors out of state to obtain abortions, highlighting the urgency of enshrining abortion protections into state law.
South Dakota advocates are also working to get abortion rights on the November ballot, and they reportedly have already exceeded the 35,000 signatures needed to do so. Abortion is currently completely banned in South Dakota, with only narrow exceptions for the life of the pregnant person. If passed, the amendment would prohibit the state from interfering with first-trimester abortions, and allow the state to regulate second-trimester abortions if the restrictions were reasonably related to the health of the pregnant person. The measure would permit the state to prohibit abortions in the third trimester. However, State Republicans have called the measure – which effectively adopts the Roe standard – too extreme to be allowed to pass.
Republicans in the South Dakota House have adopted a resolution formally opposing the ballot initiative, claiming that this was necessary in order to keep the public informed on the full impact of the ballot measure. House lawmakers have now also passed a bill that would allow petition signers to remove their signature after the fact, despite protections already being in place to protect the signature-gathering process from any improper interference. These efforts are the latest in a series of Republican-led attempts to block abortion ballot initiatives, likely in response to their popular passage in other states.
What else is happening in access?
A May trial has been set in a federal lawsuit challenging North Carolina’s requirements that 1) a provider verify the intrauterine location of a pregnancy prior to administering a medication abortion; and 2) that abortions performed after 12 weeks take place in a hospital setting.
The Supreme Court will contend with the question of how far state abortion bans may go when it hears oral arguments on April 24 in Idaho v. United States. The case asks whether EMTALA’s emergency stabilization requirements preempt conflicting state abortion bans.
The possibility of a federal abortion ban is front and center in the ongoing presidential race. Although he previously did not express a stance, reports indicate that former President Donald Trump favors the passage of a 16-week abortion ban. Trump has consistently touted the overturning of Roe v. Wade as a major accomplishment of his presidency, and there should be no doubt of what a second term would mean for Americans’ reproductive freedoms.
Nebraska lawmakers and abortion opponents testified against amending the State’s 12-week abortion ban to include an exception for fatal fetal anomalies. Among other things, opponents of the exception argued that allowing pregnant people to consider abortion would rob them of their “dignity as a mother” and that fetal diagnoses are not always accurate.
Tennessee lawmakers have shot down a proposed amendment to the State’s abortion ban that would have allowed children under 13 years of age to obtain abortion care.
Dr. Caitlin Bernard is one of the last abortion providers in Indiana, her story, experience, and perspective on the realities of providing abortions in a legally hostile environment are invaluable.
Georgia lawmakers have launched a long-shot abortion ballot initiative, attempting to get the issue before voters in November. However, in Georgia, a ballot initiative requires the approval of 2/3 of both the House and the Senate–both chambers are held by Republicans at this time.
A Kentucky lawmaker has filed a bill that would amend the State’s ban to allow for abortion in cases of rape or incest in extremely narrow circumstances.
Idaho has asked the U.S. Supreme Court to allow it to enforce its gender-affirming care ban, passed in 2023. The law is currently blocked by a District Court order, while the litigation winds its way through the litigation process.
Advocates for bodily autonomy are currently fighting a two-pronged battle as they attempt to both overturn abortion bans and also mitigate their harm while the bans remain in place. Molly Duane, senior staff attorney at the Center for Reproductive Rights and counsel in Zurawski v. Texas explains what this strategy looks like.
Ballot measure efforts across the country are competing for limited funding, a critical component to success.
The Iowa Board of Medicine’s amended proposed rules for its currently-blocked 6-week abortion ban still fail to contend with the complex realities of pregnancy and the very real needs of providers attempting to provide patient care while navigating harsh limitations on their practice.
Research shows that mental health outcomes may be worsened in states with abortion bans or severe restrictions in place, likely reflecting the anxiety and lack of autonomy felt by those living under bans.
New data reaffirms that telehealth abortion is both safe and effective, despite anti-abortion arguments to the contrary.
Lawmakers in West Virginia are pushing to remove an already extremely narrow suicide-risk exception from the state’s current ban on gender-affirming care for minors.
Michigan’s Democratic Attorney General will not fight a lawsuit brought to remove the State’s 24-hour waiting period for abortion patients.
Despite Washington state’s strong abortion protections, concerns have been raised about how hospital mergers with religious institutions may impact access to care.
The Seventh Circuit has allowed Indiana’s gender-affirming care ban to go into effect.
The Society of Family Planning reports that telehealth abortions now account for 16% of all abortions nationwide, highlighting their critical importance.