REPRODUCTIVE HEALTH DIGEST (5/9/24)

Developments in Abortion, Autonomy, and Access: 

A great deal has happened in reproductive health law at both the state and federal levels in the past two weeks. In this week’s Digest, we take a look at changes to the law in Florida, Arizona, and North Carolina, as well as how abortion is shaping the national conversation around the upcoming election season. We also cover health equity and bodily autonomy news from around the country. Please read to the end for the news that you need to know.

Want access to a detailed analysis of the abortion law in every U.S. state and territory? Subscribe to our free Policy Resource Hub for Reproductive Health, an exclusive legal database where we update the state of the law every single day - so you’re always up to speed.

This Week’s Must Read:

This week’s must-read comes out of Texas, where a man has retained anti-abortion attorney Jonathan Mitchell to investigate his partner’s out-of-state abortion. The abortion took place in Colorado where the procedure is protected, and traveling between states to obtain medical care is entirely lawful. However, the petition reportedly claims that there are grounds for a lawsuit under either  Texas’s wrongful-death statute or SB8–the state’s  6-week abortion ban, which allows private citizens to bring a lawsuit against anyone who “aids or abets” an illegal abortion. Colorado has a shield law in place aimed at protecting individuals who travel out of state for care from investigation or prosecution. This lawsuit may be one of the first challenges that we see to these reproductive health care shield laws.

Legal Changes at the State Level:
 

  • Brief Overview: 

    • Florida: Florida’s 6-week abortion ban has taken effect, cutting off yet another important access point for the South and rousing pro-choice sentiment in the red state.

    • Arizona: Arizona’s Governor signed a bill repealing the State’s 1864 total abortion ban, which was ruled enforceable by the state’s Supreme Court last month.

    • North Carolina: A federal judge has ruled that aspects of North Carolina’s 12-week abortion ban relating to medication abortion are unlawful. Specifically, Judge Catherine Eagles determined that the state’s provisions requiring physician-only prescribing, in-person prescribing, dispensing and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA are preempted by the FDA’s own regulations to the contrary. 

    • Federal: In an interview with Time Magazine, presidential hopeful Donald Trump, who has flip-flopped on the issue of abortion, was asked about his current position. Specifically, he was asked questions about whether he would have a problem with states imposing laws to surveil people’s pregnancies in furtherance of state abortion bans. He responded that he believes that states might do that and repeatedly stated his position that all issues around abortion are up to the states. When asked if he was comfortable with pregnant people being directly prosecuted for abortions, he stated that it’s irrelevant whether he is comfortable with it because it is up to the states. Although there has been a great deal of debate around the question of a federal abortion ban (and such a ban would be devastating), the reality is that full deferral to the states is in itself an extreme position. It allows the most draconian abortion bans to remain lawful, despite the measurable harm that they cause. And, an explicit federal abortion ban would not be necessary to functionally eliminate access on a national scale. Actions like enforcing the Comstock Act or wielding the FDA to limit access to certain drugs could achieve a similar result without the need for congressional approval.

Deeper Legal Analysis 

  • Florida: 

    • Florida’s Florida’s 6-week abortion ban took effect on May 1st, dramatically narrowing the timeframe for abortion availability from 15 weeks and choking off yet another access point in the South. The law was signed by Governor Ron DeSantis in spring 2023, but it did not immediately take effect while the state Supreme Court weighed whether the constitution protects the right to reproductive autonomy. 

    • The newly enforced law, misleadingly titled the “Heartbeat Protection Act,” restricts abortion after the gestational age of the embryo is determined to be more than 6 weeks. It includes narrow and vaguely written exceptions to save the life or health of the pregnant person, expressly excluding mental health from the definition of health. It also allows termination prior to the third trimester if two physicians certify that the fetus has a fatal abnormality, or prior to 15 weeks if the pregnancy is a result of rape, incest, or human trafficking and the victim shows proof that they reported the crime. Of course, we know by now that these kinds of exceptions rarely work in practice and throw both doctors and patients at the mercy of legal uncertainty, and requirements that victims report the crime in order to obtain care are medically unnecessary and cruel.

      The enforcement of this 6-week ban devastates the availability of abortion in an already access-deprived American South. Florida was one of the last states in the region to not enforce a total or extremely narrow abortion ban, and according to data from Guttmacher 1 in 3 abortions in the South took place in Florida last year. With the law in place, the closest state for patients to receive care is North Carolina–three states north. And, care in North Carolina is limited by the state’s own 12-week abortion ban. This is particularly problematic for patients who must take time off work to travel a long distance, as well as save up money for travel, childcare, and the procedure itself. 

      The final days before the 6-week ban took effect saw scenes of chaos and urgency at abortion clinics, with clinics staying open longer hours and seeing as many patients as possible. Doctors reportedly contacted patients who had delayed their abortion under the 15-week ban in order to save money for the procedure to remind them that they have little time left before the window for care closes. This chaos is not new, with abortion bans having spread all over the country and patients having to travel increasingly long distances to access basic care–even in emergency situations. The 6-week ban will further the ongoing medical crisis heralded by Dobbs and endanger the lives of countless pregnant people, particularly people of color and those who live in poverty. 

      The enforcement of the 6-week ban has increased attention on the Florida abortion rights ballot initiative that will go before voters in November. Advocates must get 60% of the vote for the initiative to pass, and the race is likely to be a close one. Anti-abortion interference with the democratic process has become a feature of ballot initiative efforts around the country, and activists opposed to the amendment have already indicated that if it passes they are prepared to file a lawsuit challenging the initiative on fetal personhood grounds. 

    • Arizona: 

      • Arizona’s Governor Katie Hobbs has signed a bill repealing the State’s 1864 total abortion ban, which was ruled enforceable by the state’s Supreme Court last month. Prior to the Court’s ruling, the governing law in Arizona permitted abortion until 15 weeks into pregnancy.

        The Court’s decision to allow the 1864 ban to be enforced sent shockwaves through the country, becoming a signal of how extreme the U.S. has become on abortion post-Dobbs. Many were quick to point out that the Civil War-era law was enacted before Arizona even became a state, and long before women had the right to vote–let alone participate in the legislative process. Calls for the legislature to act to repeal the ban began swiftly after the release of the Court’s decision, with politicians who had supported the ban facing immediate political backlash and scrutiny.  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. 

        After several attempts to gain the legislative support needed to repeal the ban, the repeal bill finally made its way to Governor Hobbs’ desk, with Republicans who broke with their party to support it facing heavy criticism from anti-abortion groups and activists. Despite the repeal, the Supreme Court’s decision is likely to galvanize voters on Arizona’s abortion rights ballot initiative this November, similar to what is happening in Florida. The fact that the state has a high court that is willing to legitimize an 1864 law with no exceptions other than to save the life of the pregnant person sounds the alarm to voters that even in states where abortion is not yet banned, there is no guarantee that that will remain the case. 

        At present, the 1864 ban is set to go into effect on June 27th at the earliest, and the repeal bill will not take effect until 90 days after the state’s legislative session closes, likely in June or July. This means that the ban will probably briefly take effect over the summer. For a look at what this kind of legislative chaos does to the healthcare system, take a few moments to read this piece describing the atmosphere at an Arizona abortion clinic after the Arizona Supreme Court’s ruling. 

  • North Carolina:

    • Judge Catherine Eagles, a federal judge in North Carolina has ruled that aspects of North Carolina’s 12-week abortion ban are unlawful. Specifically, Judge Catherine Eagles ruled that the state’s abortion pill-related provisions requiring physician-only prescribing, in-person prescribing, dispensing and administering, the scheduling of an in-person follow-up appointment, and non-fatal adverse event reporting to the FDA are preempted by the FDA’s own regulations to the contrary. 

    • The lawsuit in question was brought by Dr. Amy Bryant, a North Carolina ob-gyn. She argues that aspects of North Carolina’s ban are unconstitutional as they are preempted by contradictory federal regulations on medication abortion. Although Judge Eagles struck down several of the state’s restrictions, she allowed others that were not preempted by federal law to remain in place. Specifically, she found that the provisions of the law requiring an in-person consultation 72 hours prior to an abortion, use of an ultrasound, an in-person examination and blood testing, and the reporting of non-fatal adverse events to the state were not preempted. In September 2023, Judge Eagles issued a ruling in a separate case halting enforcement of several other provisions of the North Carolina law, including the requirement that surgical abortions after 12 weeks must take place in the hospital, and the requirement that physicians document the intrauterine location of early pregnancies prior to administering medication abortion. 

    • The issue of abortion availability in North Carolina is especially relevant as Florida’s 6-week abortion ban takes effect, forcing many to travel to North Carolina for care. It is also a timely ruling as the Supreme Court considers further restricting access to mifepristone nationwide in a case challenging the FDA’s authority to regulate the drug.


What else is happening in access?
 

  • The Kansas legislature has sent a fetal personhood bill to the Governor, where it is likely that she will issue a veto. The bill would allow pregnant people to begin collecting child support at conception, weaving the concept of fetal personhood into the state’s laws, but it would not grant medical expenses to persons who had an “elective” abortion. The bill, and others like it, raises alarm bells after Alabama’s recent disastrous ruling that frozen embryos were unborn children under the law, leading to the temporary cessation of IVF activities in the state. 

  • Kansas lawmakers’ attempt to override the Governor’s veto of a gender-affirming care ban for minors has failed. 

  • The Ninth Circuit Court of Appeals heard oral argument this week in Matsumoto v. Labrador, the case challenging the constitutionality of Idaho’s abortion trafficking ban. You can listen to those arguments here.  

  • 17 Republican-led states have sued the Equal Employment Opportunity Commission (EEOC) in federal court, arguing that a new rule interferes with the states’ right to regulate abortion. The new rule interpreted the Pregnant Workers Fairness Act to require employers to give workers “reasonable accommodations” for pregnancy, childbirth, or abortion. Opponents of the rule argue that it exceeds the intended scope of the Act, but in reality, it would require nothing more than basic accommodations–it does not require states to compensate for abortions or even allow paid time off. 

  • Mexico may elect its first female president, and advocates are considering what this could mean for the future of abortion in the country. Last year, the country’s Supreme Court issued a ruling finding that laws prohibiting abortion violate the constitution, and 12 of Mexico’s 32 states have decriminalized the procedure thus far.

  • The Fourth Circuit Court of Appeals upheld two lower courts’ rulings and found that state-provided health care must cover gender-affirming surgeries. The Court reasoned that failing to do so is openly discriminatory as the same procedures, like mastectomies, that are prohibited for transgender people are permitted for other purposes, such as treating cancer.

  • Louisiana lawmakers have shot down a bill that would have added exceptions for rape or incest to the state’s abortion ban. 

  • South Dakota advocates have gathered enough signatures for a ballot initiative protecting abortion rights to move forward. 

  • The South Carolina senate has voted to approve a gender-affirming care ban for minors. If passed, the bill would prohibit puberty blockers, hormone treatments, and gender-affirming surgeries for minors. It would also require school administrators to notify parents if a child is using a name that does not conform with their sex assigned at birth. 

  • Researchers are continuing to investigate flawed findings and methodologies in anti-abortion studies, including those relied upon by judges determining abortion-related cases. The studies purport to show mental health and physical risks associated with abortion that are inconsistent with scientific consensus. 

  • The city of Austin, Texas has passed a resolution seeking to protect trans people and stating that it is the city’s policy to not use its funds, resources, or personnel to investigate or penalize people for providing or receiving gender-affirming care. 

  • The Tennessee legislature has sent its proposed abortion travel ban to the Governor for his signature. The bill would subject violators to mandatory prison time and increase fear while decreasing access in an already incredibly restrictive state. The ACLU and other advocacy groups are urging the governor to veto the bill. It has gone to the governor (SB 1971)

  • Missouri advocates have submitted the necessary amount of signatures for their ballot initiative to move forward, despite a process fraught with opposition from both lawmakers and anti-abortion groups. 

  • New York State has filed a lawsuit against anti-abortion group Heartbeat International and 11 crisis pregnancy centers, asking the court to block the groups’ claims regarding abortion pill reversal, a process that has not been adequately studied to determine safety and efficacy. 

  • Self-managed abortions have been on the rise post-Dobbs, as many pregnant people are unable to access care in a clinical setting; although the history of pre-Roe self-managed abortions is an ugly one, the reality of modern self-management, largely through the use of abortion pills, is entirely different and remarkably safe. 

  • Fears about the availability of IVF continue throughout the country, with families relying on it moving their embryos to access states at the recommendation of their clinics. 

  • Florida has filed a lawsuit against the Biden administration challenging a new HHS rule prohibiting discrimination on the basis of gender identity under Section 1557 of the Affordable Care Act.