Developments in Abortion, Autonomy, and Access:
This week’s Digest covers newly proposed and passed legislation in several states, the future of mifepristone in pharmacies, how abortion politics are shaping the presidential race, and many more pieces of critical reproductive health news. We are also introducing a ‘must-read’ piece into each Digest, uplifting a story that provides essential context or insight on the current fight for reproductive rights. Please read on for more information.
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Legal Changes at the State Level:
This Week’s Must Read: This week, we are highlighting this piece from Time. The story of Kate Cox, the Dallas woman who sued Texas for the right to an abortion in the face of a devastating fetal diagnosis and was denied, has struck a nerve with Americans across the political spectrum. Time released this piece explaining how exceptions to abortion bans have never been sufficient to protect the lives and health of pregnant people and paralleling Ms. Cox’s story with Sherri Chessen’s nearly identical story from 1962.
Brief Overview:
Alabama: In the wake of the disastrous state Supreme Court ruling finding that frozen embryos are unborn children under the law, Alabama lawmakers have rushed through a bill purporting to protect IVF access in the state. With alarm bells raised about the impact of fetal personhood on access to fertility treatment and contraception, other states are scrambling to modulate their responses and handle their own proposed fetal personhood laws.
State of the Union: Abortion policy was front and center at the State of the Union address last week, with several democrats inviting women directly impacted by restrictive abortion bans as their guests and President Biden highlighting his administration’s desire to restore the protections of Roe v. Wade. Although alleviating the crisis created by Dobbs is absolutely critical, abortion rights advocates are urging the President and his administration to do more than merely restore Roe. Roe was never enough to protect access to reproductive care for everyone, and this moment provides an opportunity to envision a safer and more equitable future. After a number of state-level victories for abortion in 2023, the issue continues to poll as a high priority for many voters in the upcoming presidential election. Although Donald Trump has wavered on whether or not he would support a national abortion ban, his major supporters are certainly urging him to do so, and he continues to tout the overturn of Roe v. Wade as one of the major accomplishments of his administration.
Mifepristone: Mifepristone, one of two drugs typically used in a medication abortion, will now be sold in certain CVS and Walgreens pharmacies, in states where it is legal to do so. This marks a massive regulatory change in the distribution of the medication.
Kansas: The Kansas legislature has introduced a series of anti-abortion bills aimed at further tightening access to the procedure in the state; these bills are emblematic of the types of legislation being proposed in state sessions across the country.
Deeper Legal Analysis
Alabama and Fetal Personhood:
In our last Digest, we reported on the Alabama Supreme Court’s ruling that frozen embryos were minor children for the purpose of the state’s wrongful death of a minor law. This unprecedented ruling caused IVF providers in the state to immediately cease services and sent shockwaves of anger and concern throughout the country. The Court’s decision was indeed shocking, particularly in light of its heavy and open reliance on Christian ideology and subjective religious interpretation. But, reproductive rights advocates have long warned that fertility treatments and contraception are the next targets of the anti-abortion movement. Experts who predicted the overturn of Roe were dismissed as cynical and alarmist, until it happened. Post-Roe, those same experts have been criticized for their warnings that other aspects of reproductive health care are already at risk. Once again, they have been proven unfortunately right, serving as a reminder that threats to bodily autonomy must be taken seriously, and we cannot rely on the protections of the past.
Last week, Alabama responded to the Court’s ruling by rushing through a bill purporting to temporarily protect IVF. The bill’s sponsors openly acknowledge that it is merely a stopgap measure aimed at reopening IVF clinics in the wake of the decision. The bill grants IVF providers immunity from civil and criminal liability, theoretically allowing them to resume services without fear of penalty. However, it entirely sidesteps the question of whether embryos are considered minor children under Alabama law, a question that has far-reaching consequences for nearly every aspect of reproductive medicine. And, the law’s creation of near-total immunity for providers creates new problems of its own. No aspect of the medical profession is granted blanket immunity for actions related to medical practice. This law seems to make an exception to that rule for IVF providers, depriving families of meaningful legal recourse for losses related to their frozen embryos. IVF is an extremely financially and emotionally taxing process, the question of whether families should have legal options when losses occur is not controversial. However, remedying those losses by defining frozen embryos in such a way that eliminates access to IVF in the state altogether is not a reasonable solution.
In response to the Alabama ruling and subsequent legislation, other states have scrambled to stake out their own positions and decide how to handle pending and already-passed fetal personhood laws. Currently, about one third of U.S. states. have fetal personhood laws on the books. You may recall that in our previous Digest, we reported on a proposed anti-abortion law in Oklahoma that would have consequences for contraception, fertility treatments, and reproductive health privacy. The sponsor of that bill has now added amendments clarifying that IVF would not be implicated, eliminating the section of the bill that would have created an abortion database and allowing for the use of emergency contraceptives and IUDs. However, the proposed bill still uses fetal personhood language like “unborn child” and “unborn human” in place of the actual scientific and medical terms for various gestational stages, raising concerns about its potential consequences for reproductive medicine.
In Iowa, another fetal personhood bill is moving forward. This bill would increase the criminal penalties and jail time for terminating a person's pregnancy without their consent and redefine the fetus as an unborn child. The law has raised concerns over its definition of an unborn person as beginning at fertilization. Defining pregnancy as beginning with fertilization, rather than implantation, has huge implications for common forms of birth control and fertility treatments and is a key strategy in the fetal personhood movement.Mifepristone:
Mifepristone, one of two drugs typically used in a medication abortion regimen, will soon be available in major pharmacies for the first time in U.S. history. Medication abortion, which is currently approved for up to 10 weeks into pregnancy, is the most commonly used abortion method in the U.S. The safety record of the drug, including when prescribed through telehealth, is nearly unimpeachable. As the American College of Obstetricians and Gynecologists reports, complications occur in less than 1% of patients, with serious complications occurring in less than .3% and the risk of death being effectively nonexistent.
Under previous FDA regulations, the drug had to be both prescribed and dispensed by the physician. Under the new policy, certified providers will prescribe the drug, and patients will then be able to obtain it from their local pharmacy in the same way as they would any other prescribed drug. Ideally, this will increase the number of prescribers of the medication, expanding access for patients. Of course, mifepristone will only be stocked in pharmacies in states where it is legal to do so, and initially, both CVS and Walgreens will be dispensing from only a limited number of pharmacies even within access states. However, the move to certify pharmacies to dispense the medication will hopefully allow pregnant people who are unable to safely receive medication abortion to their home address or who may be experiencing unstable housing conditions to have an additional option for care.
Of course, if you read this Digest regularly you already know that mifepristone will be going before the Supreme Court later this month. Depending on how the Court rules, access to the drug could be severely limited, and the regulatory framework of FDA decision-making could be upended. However, this latest move by major pharmacies to dispense mifepristone sends a powerful signal that they believe the medication should be treated in the same way as any other FDA-approved drug.
Kansas:
Kansas legislators have proposed a series of severe anti-abortion bills during the State’s 2024 legislative session, and advocates are pushing back. Although Kansas is far from alone in its proposals, the state provides a good case study on the types of bills being advanced in anti-abortion legislative circles across the country.
Kansas’ proposed legislation ranges in subject matter from fetal personhood laws to funding for crisis pregnancy centers, but one of the bills that has received the most criticism is H.B. 2749. If implemented, H.B. 2749 would require abortion providers to ask their patients invasive questions about their reasons for seeking an abortion and report their answers to the state. The questions, including ones about whether the abortion is being sought because of the pregnant person’s career or because they think they already have enough children, are entirely medically unnecessary and represent an inappropriate intrusion into personal decision-making.
Another pair of bills, H.B. 2789 and H.B. 2809 would divert state funds to promoting childbirth in the face of unplanned pregnancies and require the state treasurer to coordinate with pregnancy centers to provide supplies and information about adoption. And Senate Bill 498 would explicitly require the state to support crisis pregnancy centers and maternity centers by providing a 70% tax credit beginning this year.
Kansas lawmakers are also proposing a series of fetal personhood bills, including H.B. 2653 and S.B. 435, which would allow for child support beginning at conception. Although proponents of these laws insist that they are intended to support pregnant people, in reality, they are a flagrant backdoor attempt to attach legal rights to an unborn fetus and incorporate those rights into existing systems of law, like the family law system.
Abortion went before Kansas voters in 2022, in the first Post-Dobbs ballot initiative. And, voters resoundingly rejected a proposed constitutional amendment that would have allowed lawmakers to ban abortion in the state without exception. Despite this decisive statement from Kansans, lawmakers continue to push to further restrict access in the state.
What else is happening in access?
This past week, the Nebraska Supreme Court heard oral arguments in the case challenging the State’s hybrid gender-affirming care and abortion ban. Attorneys challenging the law argue that it violates the state constitution’s rule that all legislation must only cover a single subject.
The first over-the-counter birth control pill will soon be available in stores across the U.S.
Missouri Republicans have introduced an extreme law that would prohibit state public and private medical schools from providing abortion training or partnering with out-of-state institutions to provide such training. If passed, this bill will severely diminish providers' preparedness to act in an emergency situation where an abortion is necessary and will inevitably worsen the maternal mortality crisis in the state. Bills like this one further Republican-led efforts to expand their states’ abortion bans beyond their own borders. Providers trained in Missouri may go on to practice medicine in other states during their career, and without full spectrum medical training, they will be unprepared to do so and the country will lose out on critical maternal health experts.
Wyoming is set to implement a gender-affirming care ban for minors, making it the twenty-third state to do so.
The Guardian has published a stirring piece on the lives lost to the Dominican Republic's total abortion ban; it is a jarring reminder of the medical necessity of safe and accessible abortion care.
A Judge has temporarily blocked Texas Attorney General Ken Paxton’s demand that PFLAG, an LGBTQ+ organization, turn over records relating to minors who have received gender-affirming care.
As we wrote about in the last Digest, Alabama’s IVF ruling is not only devastating for fertility treatment, but it also gives dangerous credibility to a fetal personhood movement that would see common forms of birth control and emergency contraception banned.
Tennessee woman Mayron Hollis allowed ProPublica to follow her family for a year after she was denied an abortion despite a severely dangerous pregnancy; the piece highlights the struggles that followed.
France has become the first country to officially enshrine abortion rights into the country’s Constitution.
An investigation has found that a major U.S. pharma group that filed briefs opposing further restrictions on mifepristone also gave $125,000 to the Republican Attorneys General Association, a group made up of Attorneys General who have largely formally opposed access to the drug.
Opponents of Arizona’s proposed abortion ballot initiative are engaged in ‘decline to sign’ efforts aimed at directly deterring citizens from supporting the measure; these person-to-person campaigns is important for anti-abortion groups in the state, because Arizona lacks the political power–like a Republican Attorney General–that allowed institutionalized state-level push back to abortion ballot initiatives in other states like Ohio.
In Montana, a judge has ruled three laws unconstitutional, key among them is a would-be ban on abortion after 20 weeks gestational age. The lawsuit was originally brought in 2021, and the challenged laws were not in effect at the time of the ruling.
The South Dakota bill aimed at allowing petition signers to later remove their signatures from a ballot initiative now goes to the Governor’s desk for her signature. This bill has been criticized as the latest Republican attempt to disrupt direct democratic efforts to protect abortion rights.
The U.S. Judicial Conference has adopted a new policy aimed at eliminating the practice of “judge shopping”, wherein litigants will deliberately bring their case before judges favorable to their cause. The most prominent recent example of this is the case challenging mifepristone, wherein the plaintiffs filed suit in the Amarillo Division of the Northern District of Texas, where it was guaranteed to land on the desk of extreme anti-abortion judge Matthew Kacsmaryk.
New polling out of Missouri shows that voters support an abortion rights ballot initiative by a narrow margin.