Developments in Abortion, Autonomy, and Access: 

Rapid legal developments in abortion, autonomy and access to health care continue to change the landscape of the law on a weekly basis. As many states near the end of their legislative sessions and the dust settles, we will have a clearer picture of where access remains, where it has been eliminated entirely, and where it is limited or in the line of fire. Please read on for more detailed information about the legal changes that have taken place in the past 2 weeks.

Legal Changes at the State Level: 

• Brief Overview: 

• Nebraska: Nebraska passed LB 574, narrowing the window for abortion from 20 weeks to 12 weeks, with exceptions for rape, incest, or to save the life of the pregnant person. 

  
  

• South Carolina: South Carolina lawmakers continued to work into legislative overtime this week, and on Tuesday May 23, the state passed the proposed 6-week abortion ban. Governor McMaster signed the bill into law on Thursday, May 25, and it was immediately challenged in state court. On Friday May 26, a South Carolina judge temporarily blocked the law while the court evaluates its constitutionality. 
  
  

• Montana: Montana Governor Gianforte signed a host of restrictive abortion bills, most notably a ban on dilation and evacuation (D&E) procedures after 15 weeks. This 15 week ban was immediately blocked by a temporary restraining order issued by a Montana district judge. 
  
  

• North Carolina: North Carolina’s legislature passed SB20, a 12-week abortion ban, over Governor Roy Cooper’s veto.
  
  

• Alliance for Hippocratic Medicine v. FDA (mifepristone case): Last Wednesday, federal judges at the Fifth Circuit Court of Appeals heard oral arguments in the case that will determine whether mifepristone remains available for medication abortion. 

• The Federal Government found that hospitals in Kansas and Missouri violated federal law (the Emergency Medical Treatment and Labor Act, or ‘EMTALA”) for failing to provide an abortion to a woman in a medical emergency, reinvigorating conversations about the federal government’s obligation to protect the rights of pregnant people from state encroachment. Secretary of Health and Human Services Xavier Becerra has sent a letter to all hospitals that participate in medicare, reminding them that their obligations under federal law supersede state abortion bans. The Propublica report linked above is a striking example of how entire hospital systems can fail patients in dire need of care, highlighting how these patients’ stories are not individual one-off cases, but rather the inevitable result of poorly drawn laws.
  
  
  

Deeper Legal Analysis 

• Nebraska: 

  • Nebraska has passed LB 574, its 12-week abortion ban, narrowing the window down from the previous 20 weeks. This new ban includes exceptions for rape, incest or to save the life of the pregnant person.  Notably, this latest restriction was added as an amendment to Nebraska’s ban on gender affirming care for individuals under the age of 19. Nebraska’s passed LB 574 by one vote, against the backdrop of protestors chanting “one more vote to save our lives.” Trans health and reproductive rights are at the heart of the fight for bodily autonomy, and they have both been subjected to unrelenting attack during this legislative session. The packaging of these two issues into one bill signals a need for advocates to act in unity in opposing restrictions of this kind. Restrictive abortion bans and bans on gender affirming healthcare seek to achieve the same overarching goal: political control over individual bodies and medical decisions. It is no coincidence that this control is exercised in a way that elevates “traditional” ideas about heteronormativity and reproduction. For more on how these two issue areas are related, I highly recommend this opinion piece from the Guardian.

• South Carolina:

  • The South Carolina legislature continued to work into legislative overtime this week, and on Tuesday May 23, lawmakers passed the proposed 6-week abortion ban, which restricts abortion after fetal cardiac activity is detectable. The bill will became operative upon signing by the Governor on Thursday, May 25, . The bill contains narrow exceptions for rape or incest until 12 weeks gestational age as well as for cases of fatal fetal anomaly and risk to the life of the pregnant person. The rape or incest exception only applies if the crime is reported to law enforcement within 24 hours of the abortion procedure, and the physician is required to inform the patient that they will report it to the sheriff. As we have previously discussed,  requirements that victims of assault report the crime to law enforcement create substantial barriers to care, particularly for those individuals whose perpetrators are family members, friends or intimate partners. This new was immediately challenged by South Carolina advocates, on the grounds that it violates South Carolinians constitutional right to privacy. On Friday May 26, less than 24 hours after being signed by the Governor, a South Carolina judge temporarily blocked the law pending the court’s evaluation of its constitutionality. Earlier this year, a very similar 6-week ban was found to be unconstitutional and permanently blocked by the state’s Supreme Court on those same grounds. 

  • The “sister senators,” who successfully blocked previous attempts to ban or restrict abortion in South Carolina,  attempted to do the same with this bill, but were unfortunately unable to overcome the vote. The 5 female senators span the political spectrum, but are united in their view that this law is bad for pregnant people in South carolina. 6-week bans function as near-total bans. They restrict abortion at a point in pregnancy before most people are able to know they are pregnant–let alone make a decision and schedule, pay for, and receive care. With North Carolina restricting access to 12 weeks, and Florida standing poised to implement its 6-week ban, South Carolina’s passage of this bill is devastating for abortion access in the South. 

• Montana:

  • Montana governor Gianforte signed a host of restrictive abortion bills, most notably a ban on dilation and evaluation (D&E) procedures after 15 weeks. This 15 week ban was immediately blocked by a temporary restraining order issued by a Montana district judge. Among the other bills signed were two restrictions on medicaid coverage for abortion and stricter regulations for clinics providing abortion services. This suite of newly passed laws comes shortly after the Montana Supreme Court upheld the ability of certain nurses to perform abortions, and in the opinion, reaffirmed that abortion is a medical decision that falls under the purview of Montana’s constitutional right to privacy. 

• North Carolina:  

• North Carolina has passed SB20, a 12-week abortion ban, over Governor Roy Cooper’s veto. The bill is set to take effect on July 01, 2023 and contains exceptions up to 20-weeks for victims of sexual assault, and up to 24 weeks for diagnosed life-limiting fetal anomalies. North Carolina previously permitted abortion until 20 weeks gestation. In addition to narrowing the window during which abortion is available, this bill contains a whole host of provisions that unnecessarily restrict and regulate access to care, including a requirement that medication abortion only be administered after an in-person physician visit verifying that the fetal gestational age is less than 70 days (10 weeks), and 3 required in person visits. Please read on for more detail about this new law, in this week’s ‘issue of the week.’ 

• Despite a years-long record of supporting abortion rights, including discussing her own medically necessary abortion, state representative Tricia Cotham recently flipped parties and handed republicans the one vote that they needed to override the Governor’s veto and pass SB20 into law. 

• Alliance for Hippocratic Medicine v. FDA:

• Last Wednesday, in New Orleans, the Fifth Circuit Court of Appeals heard oral arguments in Alliance for Hippocratic Medicine v. FDA, the mifepristone case that will determine whether the FDA’s approval of the drug for medication abortions remains intact. The uniformly conservative panel, made up of two Trump appointees and a George. W. Bush appointee disproportionately hammered FDA and intervenor Danco counsel with questions from the very first moments of the argument. 

• Throughout the two-hour arguments, much of the discussion centered on whether the Plaintiffs had suffered any injury as a result of FDA’s approval of mifepristone. Individualized injury is a constitutional prerequisite to bringing a lawsuit. The panel appeared sympathetic to the Plaintiffs’ claim that they will be imminently harmed by being forced to participate in surgical abortions after a failed medication abortion, despite no evidence supporting that claim. Plaintiffs, and the Fifth Circuit panel, relied in part upon flawed studies that purport to demonstrate that mifepristone is far more dangerous than it actually is. The panel seemed skeptical of Defendants’ argument that conscience objections, which permit doctors to decline to provide treatment that violates their conscience, protect the doctors from any risk of harm (they do). 

• With respect to the long term availability of the drug, the panel did appear less sympathetic to the Plaintiffs’ argument that their failure to challenge the 2000 approval of mifepristone within the 6-year statute of limitations should be excused. Generally speaking, failure to file a lawsuit within the statute of limitations is fatal to the claim, and the Plaintiffs have presented no meaningful reason to deviate from this norm.  A finding that that claim is time-barred would restrict Plaintiffs to their challenge to their challenge to the 2016 relaxation of the terms of use, leaving the 2000 underlying approval intact. Regardless of the Fifth Circuit’s ruling, which could take weeks or months to come down, this case is all but certain to end up in front of the Supreme Court once again, despite the Court’s proclamations last year that it was returning the question of abortion to the states.

What else is happening in access? 

• Viability: Please read this excellent write up from the American College of Obstetricians and Gynecologists (ACOG) on the complexities of ‘viability’ and why it is inappropriate for legislators to interfere in that complex and medical determination. 
  

• Florida: Florida governor (and presidential hopeful) Ron DeSantis signed a host of anti-trans and anti-LGBTQ+ bills; although these do not specifically impact abortion, the opposition uses the same playbook against all rights to bodily autonomy. 
  

• A recent report from the Center for Reproductive Rights (CRR), Physicians for Human Rights (PHR), and Oklahoma Call for Reproductive Justice,  highlights the troubling lack of information, guidance or consensus on abortion protocols in Oklahoma hospitals, leading to worsened care for patients. 
  

• Mifepristone: Individuals who have taken mifepristone for a medication abortion tell their real experiences with the medication, and their reasons for taking the drug–ranging from miscarriage management to elective abortion to alleviation of gender dysphoria. 
  

• In Iowa, the Supreme Court is set to end its term soon; however, the Court still has not ruled on the State’s request to lift an injunction that is currently blocking Iowa’s 6-week abortion ban from going into effect. Failure to do so in this term will mean that the issue is not closed at least until the next term."
  

• A recent survey shows that restrictive abortion laws are likely to drive away new doctors, increasing strain on the medical system in those states. 
  

• This Reuters article provides an overview of changes in abortion law in 2023, both restrictive and protective.
  

Issue of the Week: North Carolina’s Abortion Ban

Last week, North Carolina joined South Carolina and Nebraska in passing abortion restrictions at the tail end of their legislative sessions, when the state passed  a 12-week abortion restriction over Governor Roy Cooper’s veto. Although supporters of the new law touted it as a compromise between the left and the right leaning factions of the state, a detailed look at the bill contradicts that, and it is worth discussing why. To borrow Governor Cooper’s words, it is in reality “a compromise between the right wing and the radical right wing.” In order to better understand the true impact of any new legislation, it is important to take some time to look beyond the bill’s headline, at the text  of the law itself. 

North Carolina’s new laws regulates surgical abortion at 12 weeks and medication abortion at 70 days (10 weeks) gestational age. The full text of the bill spans approximately 45 pages of amendments and new language and contains numerous medically unnecessary or misleading provisions. First, the bill requires a patient seeking a surgical abortion within the first trimester to have an in-person visit with their doctor at least 72 hours prior to performance of the procedure–the longest waiting period in the country. Previously, patients could start the 72-hour clock with a phone call to their physician; however, the new law removes that option and implements an in-person only requirement. Waiting periods like this serve no medical purpose, but they do create significant barriers to care. Pregnant people seeking an abortion, particularly those who have to travel long distances to obtain care, now must take multiple days off work, arrange childcare for multiple doctor’s appointments, cover the costs of travel, and if they are not in a situation to safely disclose their decision–find a way to conceal their absence. This 72-hour waiting period is particularly problematic when considered against the backdrop of North Carolina’s geography–the state is surrounded by restrictive southern states, meaning that many pregnant people are forced to travel from their home state to North Carolina for access. And, for patients who elect to have a medication abortion, the doctor performing the procedure is required to schedule a follow up visit within 7-14 days and “make all reasonable efforts to ensure that the woman returns” for the scheduled visit. This means that the law requires a third in-person visit to the prescribing physician, rather than permitting the pregnant person to seek medical care in the rare circumstance that they encounter complications, or to follow-up with their local physician or emergency room. 

Like all abortion bans, SB20 purports to contain certain exceptions. But again, a closer look is warranted. The law permits abortions in cases of rape or incest until the twentieth week of pregnancy, and in cases of “life-limiting” fetal anomalies until twenty-four weeks gestational age. The law also includes a provision permitting abortions in cases of medical emergency. It imposes penalties including loss of professional licensure, civil lawsuits and potential criminal prosecution on physicians who are found in violation of the law. This means that doctors and hospitals are necessarily forced into risk-averse positions, to the detriment of patient care. This patient harm has been documented time and time again since the overturning of Roe.  Turning to North Carolina’s exception for medical emergencies, the language is drawn in highly subjective and non-medical terms. Specifically, the law defines a medical emergency as a condition which, “in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create series risk of substantial and irreversible physical impairment of a major bodily function.” Functionally, this requires a patient to become “sick enough” before a doctor can feel secure in their decision to provide care–even if they know that the patient’s health is in inevitable jeopardy. Additionally, the exception expressly excludes “any psychological or emotional conditions” from its definition of medical emergency. This means that a patient who presents with immediate suicidality in the face of an unwanted pregnancy cannot invoke an exception for medical emergency. With respect to exceptions for life-limiting fetal anomalies, North Carolina requires “the diagnosis … of a physical or genetic condition that (i) is defined as a life-limiting disorder by current medical evidence and (ii) is uniformly diagnosable.” Its that second provision that is troubling, because even where a doctor’s training and judgment indicates the overwhelmingly likely outcome, it can still be difficult for doctors to be absolutely certain that a particular condition or set of conditions is “uniformly” fatal. This opens the physician up to the risk of another person questioning their professional judgment, with dire consequences attached. In short, these exceptions are inartfully drawn, making it difficult for both patients and providers to utilize them effectively. 

This is certainly not a comprehensive overview of everything contained within North Carolina’s new law, but SB20 does provide an informative case study on how seemingly facially moderate abortion restrictions may operate to severely restrict access. We encourage interested readers to look into the details of these laws and consider their practical implications.