Developments in Abortion, Autonomy, and Access: 

Rapid legal developments in abortion, autonomy, and access to health care continue to shape the legal landscape in the U.S.. In the past two weeks, significant changes have occurred. The state Supreme Court in Ohio approved an August special election to raise the votes needed to pass a constitutional amendment in an attempt to hinder abortion rights and direct democracy. In Wyoming, a judge blocked the implementation of a state law banning medication abortion, offering temporary relief in an ongoing battle. Iowa's Supreme Court retained the block on a 6-week abortion ban, ensuring abortion remains legal until 20 weeks in the state. A lawsuit challenging Indiana's abortion ban on religious grounds gained class-action status, with the attorney general appealing the decision. The Planned Parenthood lawsuit against Nebraska's abortion and gender-affirming care ban has been temporarily stayed, allowing the ban to continue. In North Dakota, abortion providers, and clinics continue to challenge the state's restrictive abortion ban. Additionally, there were two significant victories for bodily autonomy in New York as Governor Kathy Hochul signed an order protecting reproductive rights and gender-affirming care in the city. 

Legal Changes at the State Level: 

• Brief Overview: 

• Ohio:  In Ohio, the state Supreme Court has given the ok to an August special election that will determine whether to raise the votes needed to pass a constitutional amendment from a simple majority to 60%, a dark money-fueled move designed to hinder attempts to enshrine abortion rights into the constitution that also has chilling implications for the future of direct democracy across our nation.

• Wyoming: A Wyoming judge has blocked the implementation of the first state law that would have specifically banned the use of medication abortion, which was otherwise set to take effect on July 1.

• Iowa: The Iowa Supreme Court has declined to reinstate a 6-week abortion ban, allowing abortion to remain legal until 20 weeks in the state for the time being. 

• Indiana: In Indiana, a lawsuit challenging the state’s abortion ban on religious grounds has been issued class-action status. The State’s attorney general is appealing this decision.

• Nebraska: The Planned Parenthood lawsuit challenging the constitutionality of Nebraska’s abortion and gender-affirming care ban has been stayed for another month, allowing the ban to continue in the meantime. 

• North Dakota: In North Dakota, an abortion clinic and abortion providers continue to challenge the state’s restrictive abortion ban. 
  

Deeper Legal Analysis 

• Ohio: Dark money-funded groups won big last week when the Supreme Court allowed a provision that would increase the burden on ballot amendments. Republicans in support of Issue 1, including Ohio’s elections chief Secretary of State Frank LaRose, have pointed to the abortion proposal as a main reason they’d like to see the voter threshold amendment pass in August, as it would cause significant challenges for the amendment, for which signature gathering has been well under way. In their suit, reproductive rights advocates questioned why the standards would have changed so quickly and so dramatically. They suggested that Republicans in the state Legislature only reversed themselves on the issue because if the threshold measure is passed in August, it could prevent the approval of a proposed amendment in November to enshrine abortion rights in the state constitution. However, in its 4-3 decision, the conservative majority on the state Supreme Court sided with the GOP lawmakers. The court ruled that the August 8 election is entirely legal and constitutional, and legislators had the freedom and leeway to schedule the race.
  

• Wyoming: A Wyoming judge issued a temporary block on the country’s first state law specifically banning the use of pills for abortion, the most common method in the country, just over a week before the ban was scheduled to take effect. The group behind the suit also filed a lawsuit against the state's near-total abortion ban, which had previously been temporarily blocked by Wyoming's Ninth District Court Judge Melissa Owens in March. The broader abortion ban would essentially supersede the medications ban by outlawing most abortions regardless of the method used, rendering a prohibition on medication abortion largely symbolic. In Owens’ ruling, she argued that the state failed to show that allowing the law to go into effect before the lawsuit was resolved wouldn't hurt the plaintiffs.
  

• Iowa: Iowa’s Supreme Court maintained the state’s block on a 6-week abortion ban, with a deadlocked 3-3 court (as one judge is conflicted out). The court’s ruling stemmed from a 2018 so-called ‘heartbeat bill’  that banned abortions in the state at the sixth week of pregnancy, or when, in some cases, a fetal pulse could first be heard via ultrasound. An Iowa district court swiftly blocked the law from taking effect, ruling that it violated the state Constitution — specifically its due process and equal protection clauses, the same legal arguments that U.S. Supreme Court justices issued in the landmark 1973 Roe ruling that provided federal abortion protections.
  

• Indiana: A group of plaintiffs won class action status in a religious objection lawsuit, which was filed by attorneys at ACLU on behalf of 5 anonymous plaintiffs and the organization Jews for Choice. Plaintiffs seek recognition of the right to abortion on the basis of Indiana’s 2015 Religious Freedom Restoration Act, which they argue applies to a broad definition of religion, providing the opening for the creation of a class “whose religious beliefs ‘direct them to obtain abortions in situations’ prohibited by the ban, and ‘who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion.”
  

What else is happening in access? 

• One year post-Dobbs, pregnant patients and providers are both still struggling to stay on top of the constant, kaleidoscopic changes in the law, leading them to seek safety and care outside of their home communities.

• Several doctors have consistently testified in favor of bans on gender affirming care; you can read about those doctors here. 

• Massachusetts has taken steps to protect the cell phone data of abortion seekers. 

• Ambiguous and overly-restrictive abortion bans are causing states to lose a generation of ob-gyns. 

• Connecticut has appointed special counsel to manage and advise on the defense of reproductive rights in the state. Also in Connecticut, the Governor has signed legislation that will allow pharmacists to prescribe birth control. 

• The Guardian has compiled a comprehensive list of the 1,572 politicians who have helped to ban abortion in the year since the Dobbs decision, labeled by state and broken down by party affiliation. 

• The Mayor of New York City has signed an order protecting gender affirming care in the city. 

• New York Governor Kathy Hochul has signed bills into law protecting both abortion rights and gender affirming care from out of state encroachment. 

• One year post-Roe, you can read about the state of abortion rights across the country here.

Issue of the Week:
One year since Dobbs, it’s being used to… Circumvent direct democracy? 

This week is the one-year anniversary of Dobbs, the Supreme Court decision that overturned Roe v. Wade and purportedly returned the issue of abortion to the states. In reality, the decision has created uncertainty across and within these “United” States of America, with nearly half restricting abortion, fourteen banning it entirely, an ever-growing list enshrining abortion rights in their statutory law or state constitution, and several passing “shield laws” aimed at protecting patients traveling for abortion and their medical providers from the reach of out of state investigations. 

Despite the political maelstrom precipitated by Dobbs, support for abortion rights remains consistent, even in conservative states. In fact, a new Gallup poll shows that support for abortion rights has reached an all time high. No wonder anti-choice politicians are now taking the fight to the ballot box, where they seek to circumvent the tools of direct democracy by increasing the stakes to get a measure passed through ballot measures.

For this week’s analysis of the connection between bodily autonomy and democracy, we at L4GG turned to our friend and ally Brendan Fischer, Deputy Executive Director of Documented, a nonprofit organization that tracks how dark money has infiltrated and corrupted the political process. As Brendan reported in this weekend’s Guardian, a Florida-based group mainly funded by one Illinois billionaire is driving attacks on direct democracy in states such as Ohio, Missouri, South Dakota and Arkansas, largely based on his desire to ban abortion. Key takeaways from his analysis include:

• This group, the Foundation for Government Accountability, is affiliated with the alliance of conservative think tanks called the State Policy Network, which has been central to raise the threshold for passing citizen ballot initiatives from a simple majority to a supermajority, and to make it harder to place measures on the ballot in the first place.

• In at least four states, FGA and its lobbying arm, the Opportunity Solutions Project, have lobbied or testified in favor of changing ballot initiative rules to enshrine minority rule, financed ballot committees advocating for those changes, and issued reports, legal memos, op-eds and polling that advocate for gutting direct democracy.

• They led the latest fight in Ohio, where Republican lawmakers last month passed a measure requiring future constitutional amendments to receive at least 60% support from voters – rather than a simple majority – and that would make it harder for proposed amendments to make it onto the ballot. Ohioans will now vote in August on whether to approve the higher thresholds, which are designed to derail an abortion rights initiative expected to be on the ballot in November.

• When Ohio Republicans first proposed the supermajority requirement last year, a representative of FGA’s lobbying arm was the only person who testified in favor. FGA’s lobbying arm again testified in support of the proposal earlier this year, in hearings before the House and Senate. FGA argued that the proposal was necessary to “make it more difficult for out of state billionaires and dark money groups” to change Ohio law.

• As the measure moved through Ohio’s Republican-controlled legislature, the Illinois billionaire Dick Uihlein gave $1.1m to the newly created “Save Our Constitution PAC”, which ran ads pressuring state lawmakers to support the measure; Uihlein is expected to contribute more as the August vote approaches.

• A foundation controlled by Uihlein is also the largest known source of FGA’s funding, giving $17.6m since 2014. Uihlein has also been one of the key funders of election denial. Among other things, Uihlein has poured tens of millions into his “Restoration of America” network that promotes ludicrous election conspiracy theories and which created a controversial database that published voters’ personal information online in the name of uncovering election fraud. In the 2022 cycle, Dick Uihlein and his wife, Liz, were also top donors to election-denying candidates like the Pennsylvania gubernatorial hopeful Doug Mastriano and Nevada secretary of state candidate Jim Marchant. 

• FGA itself began to focus on “election integrity” in 2021, and boasted that it “achieved more than 70 election integrity policy wins across 19 states” last year.

• FGA has actually been promoting a supermajority requirement in Ohio and other states since at least 2021. That year, FGA issued a legal memo arguing for the constitutionality of a 60% requirement for enacting ballot initiatives, and a report decrying how voters in red states like Missouri, Oklahoma and Nebraska had approved Medicaid expansion through the ballot initiative process. FGA and its lobbying arm also began testifying in support of state efforts to make it harder to enact ballot measures, and its in-house polling firm released Ohio polling showing voter support for a 60% threshold and for placing other restrictions on the initiative process. FGA’s tactics in Ohio echo those used previously – and unsuccessfully – in Arkansas and South Dakota. 

Brendan’s research reminds us that attacks on abortion and democracy are intimately connected, and we cannot win one fight without the other. It is also a reminder that the opposition will pursue their own moral agenda to the detriment of foundational democratic principles–we cannot allow that to happen. However, support for the right to abortion is at an all-time high, and we can win these fights–we just have to stay in them and remain vigilant against billionaire-backed plans to overrule the clear will of the people.