Developments in Abortion, Autonomy, and Access:
This week’s Digest takes a deep dive into the Supreme Court’s decision in Alliance for Hippocratic Medicine v. FDA, which preserves access to mifepristone for the time being. We also walk through other critical reproductive health news from around the country. Please read on for the news that you need to know.
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This Week’s Must Read:
This week’s must-read examines an often overlooked aspect of reproductive freedom–the continuing legal reality that in some states pregnant people are unable to obtain a divorce. In addition to imposing unnecessary barriers to divorce, these kinds of laws pose a serious danger to individuals in domestic violence situations. They also increase the risk of reproductive coercion, a type of abuse wherein an abuser weaponizes pregnancy to control their partner. Reports of this type of abuse have increased substantially since the Supreme Court’s decision overturning Roe. No person’s right to decisional and reproductive autonomy should be dependent upon their marital status.
Legal Analysis:
Mifepristone and Alliance for Hippocratic Medicine v. FDA:
On Thursday, June 13th, the U.S. Supreme Court handed down a unanimous decision preserving access to mifepristone–one of two drugs used in the standard medication abortion protocol. In the case, Alliance for Hippocratic Medicine v. FDA, a group of openly anti-abortion doctors and medical groups challenged the FDA’s 2000 approval of mifepristone and subsequent relaxation of its regulations for use in 2016 and 2021. Despite neither taking or prescribing mifepristone, the doctors in the case argued that they have been harmed by the FDA’s approval of the drug. They purport that, as a result of the drug’s availability and regulations for use, they may theoretically at some point have to treat a patient who takes mifepristone, suffers a highly statistically unlikely abortion complication, and ends up in one of the specific doctor-plaintiff’s emergency rooms. On this extraordinarily speculative basis, they sought to remove the drug from the market for the entire country. The Supreme Court rejected their argument, finding that the plaintiffs could not show that they had standing to bring the case.
The case was originally filed in 2022 in the Northern District of Texas, Amarillo Division, before far-right anti-abortion Judge Matthew Kacsmaryk. Although the Alliance for Hippocratic Medicine (AHM) is based out of Tennessee, it incorporated an office in Amarillo in order to bring the case specifically before Judge Kacsmaryk; the plaintiffs’ blatant judge shopping has been a central aspect of discussion around the case’s progression and why it was allowed to get as far as it did. At the trial court level, Judge Kacsmaryk functionally rubber stamped the Plaintiffs’ case, despite glaring issues surrounding standing and the statute of limitations. On appeal, the Fifth Circuit rolled back Judge Kacsmaryk’s ruling with respect to the original 2000 approval of the drug, but affirmed his determinations about the 2016 and 2021 changes to the drug’s conditions for use, including the removal of in-person dispensing requirements. The Supreme Court stayed the lower courts’ rulings until its own evaluation of the case was complete, meaning that access to mifepristone has remained unchanged but in-limbo for the past 2 years.
Following oral arguments in the case in March, most legal experts speculated that the Justices would throw the case out on standing grounds without reaching the merits, as they seemed highly skeptical that the Plaintiffs could show sufficient harm to justify their claims. In last Thursday’s opinion, authored by Justice Kavanaugh, that is exactly what the Court did. The majority opinion was written in remarkably neutral terms, without any of the inflammatory anti-abortion language and rhetoric employed in the lower courts’ rulings. The Court appeared particularly persuaded by the fact that federal conscience laws explicitly protect a doctor's right to refuse to participate in abortion if it conflicts with their beliefs. As the Court acknowledged, not a single one of the plaintiffs could point to an instance where they encountered a patient suffering a complication from mifepristone, asserted conscience objections, and were required to participate in abortion care anyway. The Court also expressed concern that allowing doctors to assert standing in the way that plaintiffs did would create an “unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.”
Although the majority opinion was unanimous, Justice Thomas did write his own concurrence. Notably, he employed anti-abortion language, referring to providers as “abortionists” and their patients as “clients.” Although he did agree with the majority’s conclusion that the plaintiffs lacked standing, he used his concurrence to take aim at the well-established doctrine of associational standing, a form of third-party standing. He argued that it is inconsistent with constitutional limitations on who may bring a lawsuit and that, although the plaintiffs did not satisfy the doctrine, the doctrine itself should also be revisited in its entirety. Third-party standing has traditionally played an important role in civil rights litigation, including abortion cases where providers have been permitted to represent their patients' interests in challenging abortion restrictions. Although the Plaintiffs in this case attempted to improperly apply the doctrine, eliminating it altogether would undercut a key mechanism for enforcing civil rights.
Following the Court’s ruling, access to medication abortion remains unchanged for the time being. However, it is all but certain that this case will continue in some form or another. Prior to the Supreme Court’s ruling, Idaho, Kansas and Missouri each sought to intervene in the case, arguing that their own interests are harmed by the use of mifepristone. The Supreme Court denied that request, but Judge Matthew Kacsmaryk approved it at the district court level. He will now have to determine whether the states can continue the lawsuit in his own court, despite their lack of a legal connection to the Northern District of Texas. If they continue with the case, in Texas or elsewhere, the states will have to overcome standing challenges and satisfy the court that they have been concretely harmed by the FDA’s actions with respect to mifepristone.
It is also worth taking a moment to remember that although the Supreme Court’s decision is a positive one, it was also the obvious and only correct conclusion that the Court could have reached. A decision to the contrary would have been an extraordinary break with precedent and put a nail in the coffin of any claim of judicial neutrality with respect to abortion cases. Additionally, abortion rights remain before the high court as we await its ruling in Moyle v. United States, the case about whether Idaho can enforce its draconian abortion ban over federal emergency stabilizing requirements created by the Emergency Medical Treatment and Active Labor Act (EMTALA).
What else is happening in access?
Missouri: A Missouri judge has ruled against clergy members representing seven faiths in their challenge to the state’s abortion ban. The clergy members argued that the state improperly violated the separation of church and state and adopted only one subjective religious view of when life begins–one that is not consistent with other religious and secular views. However, Judge Jason Sengheiser has ruled that the belief that life begins at conception is not necessarily a religious belief. Several of the clergy members involved in the lawsuit shared their own abortion stories. Pro-abortion religiously based lawsuits are a unique feature of the post-Roe legal landscape, diverging from the typical view that the anti-choice movement somehow holds a monopoly on religious views of abortion. In a similar case out of Indiana, the state’s abortion ban is blocked for cases where it conflicts with a person’s sincerely held religious beliefs.
South Dakota: A South Dakota anti-abortion group, the “Life Defense Fund,” has filed a lawsuit to try and stop an abortion rights ballot initiative from going before voters in November. If passed, the pro-choice measure would prohibit the government from interfering with first-trimester abortions, allow reasonable government regulation in the second trimester, and allow prohibition in the third trimester with exceptions for the life or health of the pregnant person. It received almost 20,000 more signatures than what was necessary to put it on the ballot, and South Dakota Secretary of State Monae Johnson validated the measure in May. The Life Defense Fund complaint alleges a series of flaws in the ballot initiative process, including invalid signatures, fraud, and certain technical and procedural errors. Dakotans for Health, the group behind the ballot initiative, called the move a “last-ditch effort to undermine the democratic process.”
Florida: As Florida advocates continue to fight to get abortion on the ballot in November, a new dispute about the related financial impact statement has arisen. Floridians Protecting Freedom, the group advocating for the initiative, filed the lawsuit arguing that the financial impact statement, which was written prior to the state supreme court issuing two major abortion decisions, was no longer accurate and contained out-of-date caveats relating to litigation that is now settled. A Leon County Circuit judge issued an order requiring a rewrite of the statement; however, the state immediately appealed and the appeals court stayed that order. The court also rejected a request to send the case directly to the state supreme court to expedite the legal proceedings.
Accommodations for Abortion: A federal judge out of Arkansas has dismissed a lawsuit brought by 17 states challenging the Equal Employment Opportunity Commission’s rule that requires the same routine accommodations for abortion patients as for other pregnancy-related conditions. In his dismissal, the judge found that the states lacked standing. Meanwhile, a federal judge out of Louisiana came to the exact opposite conclusion in a separate challenge to the same EEOC rule. Judge David Joseph granted the U.S. Conference of Catholic Bishops and Louisiana and Mississippi relief from complying with the abortion-related provisions of the EEOC’s rule while litigation plays out. The rule went into effect on Tuesday, June 18th.
IVF and the Southern Baptist Convention: The Southern Baptist Convention has voted in favor of a resolution opposing IVF. Although this is not governmental action, it is a request for the largest protestant denomination in the country to oppose the treatment on fetal personhood grounds at a time when attacks on contraception and reproductive health are at an all-time high. These kinds of resolutions also signal to politicians what portions of their electorate may support. The vote came the same month that Senate Republicans voted to block a bill that would protect IVF nationwide and a bill that would have created a federal right to access contraception.
IVF in Alabama: The Alabama families whose lawsuit resulted in the state Supreme Court finding that frozen embryos were children under the law are now challenging the law protecting IVF that was passed in response to that decision. These families brought a claim for wrongful death of a child after their frozen embryos were destroyed in the clinic. The Alabama Supreme Court sided with them, causing IVF clinics around the state to shut down–at least one permanently so. In response to the ruling and the resultant clinic closures, the legislature scrambled to pass a law safeguarding IVF in the state by shielding providers from civil and criminal liability. The families now argue that the shield legislation violates their constitutional rights. The issue could again land before the state’s supreme court.
Arkansas: Arkansas advocates are working to get the 90,704 signatures needed to get an abortion rights ballot initiative before voters in November. The right-wing group Family Council used a Freedom of Information Act (FOIA) request to obtain information about paid canvassers working to collect signatures and posted a list of 79 people on their website, placing the canvasser’s safety and privacy at extreme risk.
California: The California Senate has approved a bill that would prohibit school districts from requiring educators to disclose a child’s pronoun change to their parents. California’s protective legislation stands in stark contrast to the legislative attacks on trans and other lgbtq+ youth around the country, including forced outing bills that require school administrators to ‘out’ gender diverse children to their parents.
Gender-Affirming Care in North Dakota: A North Dakota judge has declined to block enforcement of the state’s gender affirming care ban for minors during the pendency of litigation, finding that the plaintiffs did not meet the standard necessary for a preliminary injunction.
Gender-Affirming Care in Florida: In a significant win for trans rights, a federal district court judge out of Florida has struck down Florida’s ban on gender affirming care for minors, as well as a number of restrictions on care for adults. Judge Robert Hinkle found that the ban was unconstitutional and that the state could not show that it has a legitimate interest at stake, stating that “whether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest.” The state will appeal Judge Hinkle’s decision up to the 11th Circuit Court of Appeals. This ruling comes as states across the country have enacted bans on gender affirming care, and while the issue has not yet reached the Supreme Court, it is all but certain to do so in the near future.
Abortion On the Ballot: With abortion on the ballot in states across the country this November, it is important to remember that state-level wins do not guarantee the future of abortion access or signal the end of the fight. An anti-choice administration or Supreme Court could functionally invalidate those measures by passing a federal abortion ban, enshrining fetal personhood into our laws or enforcing the Comstock Act against abortion. State passage of abortion rights amendments also do not automatically do away with pre-existing abortion restrictions in that state. This means that in states with legislatures hostile to abortion, advocates will still have to go through the process of litigating the constitutionality of bans even once a constitutional amendment has been passed.
Doctors Join the Fight: With the proliferation of post-Dobbs anti-abortion laws, left-leaning doctors are starting to run for office in hopes of taking matters into their own hands to improve healthcare legislation and regulation.