Developments in Abortion, Autonomy, and Access: 

We have a great deal of reproductive health and bodily autonomy news to report on this week from both the federal level and states across the country, including Arizona, South Carolina, Louisiana, and Ohio. To ensure that we hit all of the important points while still keeping things succinct, we are breaking from our usual format to provide you with a broad overview of all of the news you need to know. 

We also wanted to take this opportunity to announce the expansion of our Policy Resource Hub for Reproductive Health to include research on the availability of abortion for minors nationwide. The Hub is an exclusive legal database where we update the state of the law every single day in every U.S. state and territory - so you’re always up to speed. Up until now, our Abortion Laws by State tool has provided linked and cited answers to questions about if and when abortion is legal in a state; what exceptions, exemptions, and affirmative defenses exist; and what providers must show and report in order to operate within those exceptions. We are so excited to now include answers to your questions about the law regarding minors’ access to abortion and related reproductive care in every state. We invite you to subscribe to and use this resource in your own work and advocacy and to share it with anyone who may benefit from the information included.

This Week’s Must Read:

In this Digest, we have continually discussed how abortion bans and restrictions place providers in untenable positions that result in worsened patient care. This week’s must-read comes from The Nation and describes how that reality is playing out in healthcare facilities across the country, harming patients, forcing providers to practice substandard medicine, and resulting in OB-GYNs leaving ban states en masse. Dobbs allowed states to legislate the practice of medicine through subjective moral, ideological, and theological lenses that are inconsistent with the practice of medicine and the complex realities of pregnancy. As sociologist and researcher Carole Joffe points out in the article, Dobbs gave “the American people a window into how dangerous pregnancy can be that was not there before[;] [p]eople can say they don’t care, which is the actual anti-abortion position, but at least now they can’t say they don’t know.”

Reproductive Rights and Health Equity News:

• In Arizona, Governor Katie Hobbs has signed a bill repealing an 1864 total abortion ban that the state Supreme Court ruled was enforceable last month. However, that repeal bill will not go into effect until 90 days after the state legislature adjourns, likely in late June or July. The state Supreme Court has now granted a stay of its decision – delaying enforcement of the ban for another 90 days. This means that the earliest the ban can be enforced will be September 26th. Depending on when the state’s legislature adjourns, this could mean that the ban briefly goes into effect in the fall, interrupting care and creating unnecessary confusion around the state of the law.

• A South Carolina state judge has ruled that the state can fully enforce its 6-week ban, despite a lack of clarity around the legislation’s definition of fetal cardiac activity. The state purports to ban abortions after detection of fetal cardiac activity, which the state has interpreted as occurring around six weeks gestational age. However, medical experts argue that this is an inaccurate characterization of a fetal heartbeat, as the actual formation of the heart doesn’t occur until around nine weeks into pregnancy. The constitutionality of the state’s 6-week abortion ban has already been affirmatively decided by the Court. Now, rather than challenging the ban in its entirety, advocates asked that it not be enforced until factual questions around the meaning of a detectable fetal heartbeat could be answered. The court declined this request; it based its ruling not on the actual clarity of the ban, but on the fact that legislators on both sides of the issue had previously characterized it as a 6-week ban. 

• The Louisiana House has passed a bill that would classify mifepristone as a controlled substance. The first-of-its-kind law would make it a crime punishable by jail time for anyone to possess the drug without a prescription, with the exception of the pregnant person. This new controlled substance bill will now make its way to the state senate and then the Governor’s desk, where he is expected to sign it into law. Notably, Louisiana is already operating under a total abortion ban, so this additional restriction shows continuing legislative enthusiasm for limiting the availability of reproductive health care in the state. This same legislature recently shot down proposed amendments to the state’s ban that would have created exceptions for rape or incest.

• The 11th Circuit Court of Appeals issued a ruling finding that a sheriff’s office in Georgia’s failure to cover an officer’s gender transition-related health care under its employee health plan amounts to a violation of anti-discrimination law. This ruling is binding on Georgia, Florida and Alabama–three states that have passed extremely restrictive anti-LGBTQ+ laws, including bans on gender-affirming care for minors. The Court’s Opinion reasoned that the health plan’s blanket denial of coverage for gender-affirming surgery plainly amounts to discrimination on the basis of transgender status–a status protected by the U.S. Supreme Court in Bostock. With the recent proliferation of anti-trans legislation across the country, it seems imminent that the issue of access to gender-affirming care will land before the Supreme Court in the near future. 

• South Carolina Governor Henry McMaster has signed into law a ban on gender-affirming care for minors, making it the 25th state to do so. The law takes effect immediately, and groups on the ground are preparing to provide resources to families who need assistance to travel out of state for care. 

• Kansas Governor Laura Kelly has vetoed a fetal personhood bill that would have allowed child support payments to begin at conception, including medical and pregnancy-related expenses. S.B. 232 specifically excluded medical expenses incurred in cases where the pregnant person has a non-emergency abortion. Although supporters of the bill claim that it is intended to support pregnant people, these types of bills weave the concept of fetal personhood into the fabric of a state’s law, strengthening the legal groundwork for future laws restricting reproductive freedom. 

• A clash between blue states that have enacted shield laws protecting abortion patients and providers and red states that are seeking to close any gaps in their abortion bans is likely imminent. These shield laws, which sometimes allow providers to prescribe abortion medication directly into ban states under the protection of their own state law, have not yet been tested in litigation, but thus far they have been an effective tool in allowing thousands of pregnant people to access otherwise unavailable care. John Seago from Texas Right to Life has indicated that the group is looking for the right set of circumstances to bring a challenge to the protective laws. 

• Anti-abortion attorney Jonathan Mitchell has made a career out of challenging abortion rights and advocates, largely through legally unsustainable scare tactics. At present, he is directly targeting women who have traveled out of state to obtain lawful abortions with deposition requests. These types of cases may be designed to set up a challenge between abortion-ban states and those with shield laws in place, testing the strength of those protections. 

• Clarendon County, Texas has voted unanimously to reject an effort to designate itself as a Sanctuary City for the Unborn, citing concerns that abortion is not the kind of thing that the city should be involving itself with–particularly as Texas already has banned abortion outright. 69 cities in the U.S. have declared themselves to be so-called “Sanctuary Cities,” with over 75% of those located in Texas. The efforts, led by anti-abortion activist Mark Lee Dickson, have cities declare abortion illegal within their city limits (even where a state has already banned the procedure), and aim to deter citizens from traveling through the county or city to access abortion elsewhere. 

• A Planned Parenthood-led lawsuit in Ohio has broadened its legal challenge to restrictive laws surrounding medication abortion. In 2021, prior to Dobbs and Ohio’s passage of an abortion rights constitutional amendment, Planned Parenthood filed a lawsuit targeting a state law requiring in-person administration of medication abortion despite the proven safety of telehealth abortion care. In light of Issue 1 enshrining pre-viability abortion rights into the state Constitution, that lawsuit has been expanded to also challenge 1) the prohibition on advanced practice clinicians from prescribing medication abortion; and 2) the prohibition on prescribing mifepristone in a way that differs from federal regulations. Although the addition of abortion-protective language to the state Constitution likely renders many of Ohio’s remaining abortion restrictions unconstitutional, lawmakers appear poised to continue fighting challenges brought against those laws. And, the Republican-led legislature is unlikely to repeal any conflicting restrictions of its own volition. 

• A Tennessee woman has opened up about her story of how denial of abortion care following a devastating fetal diagnosis impacted her future fertility. Like many other pregnant people post-Dobbs, despite the non-viability of her pregnancy, Breanna Cecil was not able to obtain an abortion in her home state because of Tennessee’s abortion ban. Although she was eventually able to travel to Chicago to obtain the care she needed, after returning home she developed a fever and discovered that there was retained tissue from the fetus. This ultimately resulted in an abscess requiring the removal of one of her fallopian tubes and ovaries. Had she been able to quickly and simply obtain the care she needed in her home state, this series of events would likely have never occurred. Stories of pregnant people losing their fertility potential as a result of abortion laws have been all too common post-Dobbs, and it is important to remember that for every person whose story breaks through to the media, there are countless others who suffer privately. 

• Kansas abortion providers have filed a lawsuit in state court asking the court to block enforcement of a law that would require them to report on the reasons why their patients are seeking abortion care. Although Kansas Governor Laura Kelly initially vetoed the bill, the state Legislature overrode that veto. The bill would require providers to ask about and report on entirely medically unnecessary information, including whether the abortion is sought because it might interfere with the pregnant person’s career or education, and whether the patient received financial assistance from a nonprofit to obtain the abortion (ie: an abortion fund). Opponents of the law have decried it as invasive and intended to shame and intimidate patients out of obtaining lawful care.

• Although presidential hopeful Donald Trump has stated that he would not sign a federal abortion ban into law, there are myriad ways in which he could easily and effectively eliminate access across the country without the need to ever explicitly ban it. These include utilizing the FDA to limit access to mifepristone, instructing the DOJ to enforce the Comstock Act, or supporting efforts to weave fetal personhood into federal law. Most recently, Trump faced criticism for comments in an interview that he was “looking into” the possibility of regulating access to contraception. 

• The Missouri legislature’s attempt to raise the threshold required for passing a constitutional amendment, ahead of a vote on an abortion rights ballot initiative, has failed. Democratic lawmakers filibustered the measure for over 50 hours. Efforts to use the courts and state legislatures to block abortion ballot initiatives have been seen in states all over the country, including in Ohio and Florida. 

• South Dakota and Colorado advocates have succeeded in their efforts to get abortion on their states’ ballots for November. In South Dakota, Secretary of State Monae Johnson has validated the Petition, acknowledging that it exceeded the necessary number of signatures to qualify. And in Colorado, the Secretary of State has similarly given the greenlight to an initiative that would extend legislative protections to the state’s Constitution. Although abortion is currently legal in Colorado, amending the constitution to include reproductive rights would ensure that those protections cannot be easily overturned by a change in state administration. Such a ballot initiative would also lend legal weight to the state’s shield laws. 

• Republican Senators Ted Cruz and Katie Britt have unveiled legislation that would purportedly protect IVF by denying Medicaid funding to any state that bans the procedure. The bill comes months after the Alabama Supreme Court issued a ruling finding that frozen embryos are children under the law, resulting in the temporary cessation of IVF in the state and the permanent closure of at least one clinic. The irony of this bill’s introduction, which comes months after Alabama’s Supreme Court issued a ruling finding that frozen embryos are children under the law, by two anti-abortion senators who helped create the circumstances under which IVF is under threat is glaring. 

• For an updated look at where abortion may appear on the ballot this November, take a moment to read through this write-up by the Associated Press. Abortion is certain to be on the ballot in Maryland, South Dakota, Florida, and Colorado, and many other states have similar efforts underway. 

• Texas has appointed anti-abortion doctor Ingrid Skop to its maternal mortality review committee. Dr. Skop is one of the doctors involved in the lawsuit challenging the FDA’s approval of mifepristone, and has made a career out of testifying against abortion rights, including before the U.S. Congress. She is also the Vice President and Director of Medical Affairs for the Charlotte Lozier Institute, the anti-abortion research arm of Susan B. Anthony Pro-Life America. 

• In this Article, Truthout explains how the intersection of abortion bans and immigration status makes accessing care in states such as Texas, Florida, and Arizona extremely difficult–if not impossible–for undocumented people.