REPRODUCTIVE HEALTH DIGEST (4/27/23)
Developments in Abortion, Autonomy, and Access:
The past several weeks have brought an onslaught of rapid changes to abortion and bodily autonomy law at the state and, with the addition of the federal case challenging medication abortion, federal levels. Anti-choice legislators have been aggressively proposing, enacting and amending abortion restrictions, while other states attempt to mitigate this harm and carve out protections for providers and patients. Meanwhile, the future of access to medication abortion is uncertain, as parties litigate the FDA's approval of mifepristone before the Fifth Circuit Court of Appeals. Although not an exhaustive overview, read on for a summary of some of the actions to watch:
Legal Changes at the State Level:
Brief Overview:
On April 13, Florida passed a 6 week abortion ban, which will take effect once the state Supreme Court rules on the currently challenged (but operative) 15 week ban.
On April 25, North Dakota’s governor signed into law a ban on abortion throughout the entire pregnancy, with very limited exceptions for the life or health of the mother and for cases of rape, incest or medical emergency up until 6 weeks gestational age, reasserting its determination to be a staunchly anti-abortion state.
On April 4, Idaho’s governor signed into law a statute that amends the language of its abortion ban, creating exceptions for rape or incest and life of the pregnant person, but restricting its rape or incest exception to first trimester procedures.
Throughout March and April, Colorado and New Mexico have passed protective legislation aimed at shielding providers and patients from out-of-state prosecution and investigation.
On April 18, HB0883 was transmitted to the governor’s desk. Tennessee’s new law that would amend its abortion ban to include exceptions (rather than affirmative defenses) for the life of the pregnant person has made its way to the governor’s desk.
At the federal level, The Supreme Court ruled last week in Alliance for Hippocratic Medicine v. FDA that mifepristone will remain available pending resolution of the appeal at the Fifth Circuit Court of Appeals and a subsequent petition to the Supreme Court, if one is sought. Mifepristone is one of two drugs used in a standard medication abortion regime; the plaintiffs in this case seek to reverse the FDA’s 2000 approval of the drug.
Deeper Legal Analysis
Florida:
On April 13, 2023, Florida Governor Ron DeSantis signed SB 300; this law further restricts abortion access in Florida from 15 weeks to 6 weeks, a restriction that the majority of Floridians do not support. 6-week bans prohibit abortion at a gestational point before most people know they are pregnant, and as we have seen play out in other states like Texas, they functionally operate as complete bans. Because of an ongoing legal challenge to the state’s operative 15-week ban, the new 6-week restriction will go into effect 30 afters after the Florida Supreme Court rules on that challenge.
If you are curious about how the effects of restrictions like these play out, take a few moments to listen to two women describe their inability to access necessary medical care after being diagnosed with life-threatening conditions during their pregnancies. Even in states, like Florida, where the existing abortion bans carve out exceptions for lethal fetal anomalies and to save the life of the mother, physicians are forced to grapple with legal uncertainty in their provision of care.
North Dakota:
In North Dakota, lawmakers have passed another total abortion ban, which would criminalize abortions with limited exceptions for the life or health of the pregnant person and for cases of rape or incest, if the abortion occurs within the first 6 weeks of pregnancy. The bill passed the state house and senate with veto-proof majorities and was signed into law by the governor on April 25. This new legislation comes a month after North Dakota’s Supreme Court declared the state’s trigger ban unconstitutional; the North Dakota House Majority Leader explained that they passed this new to “send another message to the North Dakota Supreme Court,” that “[t]his is what the Legislature wants[;] we want pro-life in North Dakota.”
Idaho:
As you may recall, Idaho’s Supreme Court determined in January that the state constitution did not include a right to abortion. Since then, the Idaho Legislature has been aggressive in its anti-abortion agenda. In early April, Idaho became the first state to enact a law targeting interstate travel to access abortion care. HB 242 criminalizes so-called “abortion trafficking”, which the statute defines as recruiting, harboring or transporting a pregnant minor within Idaho without parental consent; the pregnant person’s consent to the travel and procedure is not a defense to the law.
Also in April, Idaho passed HB 374, which amended the language of its criminal abortion statute; this amendment will take effect on July 1, 2023. It replaces the current affirmative defense language for circumstances of rape or incest, or where the pregnant person’s life is at risk with exception language. The bill also amended the rape or incest exception to clarify that it only applies to procedures performed during the first trimester.
This bill is emblematic of the kind of facial loosening of restrictions that reflects an attempt to seem more moderate on the issue of abortion, without actually improving access to care. You can read more on that here: https://www.nytimes.com/interactive/2023/01/21/us/abortion-ban-exceptions.html.
Idaho has recently had to contend with its physicians leaving the state, or considering leaving the state. And one hospital closed the doors to its obstetrics ward, citing in part the fact that the “the Idaho Legislature continues to introduce and pass bills that criminalize physicians for medical care nationally recognized as the standard of care.”
Colorado & New Mexico:
Colorado and New Mexico both recently passed protective legislation, aimed at shielding providers and patients from anti-abortion attacks from both in and out of state.
On April 5, 2023, New Mexico passed SB13, the Reproductive and Gender-Affirming Health Care Protection Act, which prohibits state entities from cooperating with out-of-state criminal and civil investigations of patients and providers. Last month, New Mexico passed HB 7, the Gender-Affirming Health Care Freedom Act, which prohibits any public body from imposing laws, ordinances, policies or regulations that prevent patients from receiving reproductive or gender-affirming care.
This legislation comes at a time when certain New Mexico cities are attempting to pass and defend local abortion bans, arguing that the mailing of materials used for abortion is in violation of federal law.
Colorado passed similar protective legislation in Mid-April. Abortion providers in Colorado are now partially protected by both executive order and by statute. In 2022, Colorado’s governor signed an Executive Order aimed at protecting providers engaged in lawful acts under CO state law from facing liability or disciplinary action connected to out-of-state investigations. This past week, the governor passed additional protective laws. Mostly notably, SB 23-188, which lays out non-interference mandates for government officials. Under this law, Colorado won't comply with wiretapping and extradition requests from other states related to abortion or gender affirming care; the state will not issue subpoenas, summons or search warrants related to the same; and, state courts won't consider civil actions brought by individuals.
Tennessee:
We have heard a lot about Tennessee in the past few months, as their abortion ban is arguably the most extreme in the nation. Earlier this week, a bill made it to the governor’s desk which would allow narrow exceptions to the state’s abortion ban by replacing the currently existing affirmative defenses with exception language. The governor can sign the bill, veto it, or let it sit for 10 days without action, at which point it will become law.
Alliance for Hippocratic Medicine v. FDA
Alliance for Hippocratic Medicine v. FDA is the case everyone has been watching and talking about, as it threatens to restrict access to the medication abortion drug mifepristone nationwide. This case was initiated by a group of anti-abortion physicians and physician groups who sued the FDA, arguing that its 2000 approval of mifepristone, one of two drugs used in a standard medication abortion regimen, was improper. The case also challenges the easing of certain restrictions on the administration of mifepristone that took effect in 2016 and 2021, including lifting the requirement of an in-person visit during the Covid-19 pandemic, and increasing the window of use from 49 days gestational age to 70 days. Kaiser Family Foundation created an excellent explainer on the initial case, available here: https://www.kff.org/womens-health-policy/issue-brief/legal-challenges-to-the-fda-approval-of-medication-abortion-pills/.
Procedural Recap:
On April 7, conservative Judge Matthew Kascmaryk granted the Plaintiffs’ motion for preliminary injunction and ordered the FDA to halt its approval of mifepristone as well as its subsequent easing of restrictions, including the lifting of the in-person requirement for administration of the drug In his order, he granted the government 7 days to appeal that decision to the Fifth Circuit.
Shortly after Judge Kascmaryk issued his ruling, a federal court out of Washington state issued a conflicting ruling, ordering the FDA to maintain the status quo of mifepristone in the 17 states and District of Columbia involved in that case.
On April 13, The Fifth circuit reversed course on the 2000 preliminary injunction, finding that the plaintiffs’ challenge was past the statute of limitations, but it upheld the district court’s findings as to the 2016 and 2021 revisions to the drug’s regulations, and it approved and adopted some of the most troubling aspects of Judge Kascmaryk’s legal reasoning.
Following the Fifth Circuit’s ruling, the government sought an emergency stay from the Supreme Court–meaning that they are asking SCOTUS to rule that mifepristone must continue to be available while the parties litigate the merits of the case. After initially granting a temporary stay, the Supreme Court ruled on April 21 that the lower courts’ ruling is stayed “pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a writ of certiorari” to the Supreme Court, if one is sought.
The Current Takeaway: at this moment, the FDA’s approval of mifepristone stands and the legality of distributing the drug will remain in place while the parties litigate before the lower courts. At this time, the Fifth Circuit Court of Appeals is set to receive briefing and hear oral arguments in May; depending on how that court rules, the case could end up back in front of the Supreme Court or it could go back down to the District Court for full litigation.
Other things to watch with this case:
Adding another layer to this case, this past week, Genbiopro, the manufacturer of the generic version of mifepristone has sued the FDA in a bid to protect abortion access.
Some states have responded by beginning to stockpile mifepristone in anticipation of an adverse ruling. Other groups, like these California Doulas, have similarly begun to shift their operations in preparation for further restrictions to abortion access.
If you’re interested in reading a more thorough evisceration of both the district court and the Fifth Circuit’s rulings, I recommend these breakdowns from attorney Adam Unikowsky:
What else is happening in access?
The Texas House has advanced HB9000, a law that restricts access to books in schools. During debate on Wednesday, State Rep Ron Reynolds, explained that book bans have a long history of being applied in a discriminatory manner, with targeted titles centering on LBGTQ issues, protagonists of color and teen pregnancy.
Iowa’s republican Attorney General suspended coverage of emergency contraception for rape victims.
The abortion clinic in West Virginia that was challenging the state’s abortion ban has voluntarily dropped its suit, citing its inability to continue providing abortion care in the state at this time.
Missouri has passed a gender affirming care ban that affects adults as well as minors, making it the most extreme in the nation.
As we all know, the fight for bodily autonomy in gender affirming care and the fight for abortion rights are inextricably intertwined. Both of these movements center the right to make healthcare decisions in consultation with your doctor and family, without the state inviting itself into the room. For a detailed look at these laws, see Lawyers for Good Government’s Trans Health Report.
The ongoing threat to Mifepristone could “spur increased activism and lobbying from organizations opposed to other drugs or medical treatments, such as COVID-19 vaccines, contraceptives, hormones for artificial reproductive technology or gender affirming procedures, and HIV prevention drugs.
Issue of the Week: Abortion Exceptions and Why They Don’t Work
This week’s newsletter contains a few legal hits relating to states like Tennessee seemingly loosening their abortion bans by adding in or amending exceptions. While this may look like progress, it is worth taking a moment to discuss why these exceptions may be politically expedient for legislators who hope to appear more moderate, but are ultimately unworkable. At the outset, these exceptions largely use vague non-medical language, like “life or health of the mother.” This language is open to interpretation and reasonable medical minds can differ. Where there is ambiguous language combined with severe criminal and civil penalties for violations of the law, physicians are forced to take risk averse positions rather than provide medically standard care. States that require the pregnant person’s life or health to be in imminent danger before action can be taken have created a framework where, by the letter of the law, the doctors must wait until the pregnant person is sick enough to require emergency care before they can feel safe intervening–even if they are medically certain that the pregnancy is no longer viable. For example, in Texas 5 women are suing the state for circumstances just like that. One of those women, Amanda Zurawski, was diagnosed with a condition that guaranteed that she would lose her very wanted pregnancy. However, because the fetus still had a heartbeat, and she was not yet in life-threatening danger, she was denied care until she developed sepsis and nearly lost her life. The bottom line is this: life and health exceptions inappropriately insert the state’s judgment into medical decisionmaking and both providers and patients are forced to bear the consequences.
With respect to exceptions for rape or incest, the few ban states that have these exceptions often require the victim to report the violation to law enforcement in order for the exception to apply. However, we know from decades of data that the majority of victims will not or cannot report the assault. This is especially true when we consider minors who are victimized by members of their own family or family friends; they are forced into an untenable and potentially unsafe situation in order to access abortion.
Finally, it is worth considering how conversations focusing on exceptions shift the conversation away from the very real harms that abortion bans cause for individuals who do not fit within any exception but still require and deserve safe healthcare. Certainly, stories of pregnant people in emergency circumstances or those who have faced assault highlight the cruelty of these laws. However, all abortion is a deeply personal choice, and it is crucial that our advocacy views all reproductive care as equally valid and worthy, regardless of the circumstances that necessitate it.