Developments in Abortion, Autonomy, and Access: 

This week’s Digest covers important legal developments out of Texas, Louisiana, Tennessee, and Indiana, as each of the states continues to fight to restrict abortion access and reproductive freedom. We also delve into ongoing bodily autonomy news from around the country. Please read to the end for the news that you need to know. 

In case you missed it in the last Digest, we wanted to take this opportunity to let you know about the expansion of our Policy Resource Hub for Reproductive Health. 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 announce that we have now added answers to your questions about the law regarding minors’ access to abortion and related reproductive care in every state. Please subscribe at L4GG.org/Repro for access and share amongst your network!

This Week’s Must Read:

This week’s must-read story comes out of Texas, where a family law case threatens the future of IVF in the state. A divorcing couple in the state is locked in a dispute over whether their frozen embryos should be treated under Texas property laws or child custody laws. Although the trial court and appeals court each rejected the argument that Dobbs and Texas’s abortion bans combine to create an inference that frozen embryos should be treated as children, the case has been appealed to the Texas Supreme Court. If the Court hears the case, it could issue a ruling similar to the Alabama Supreme Court’s finding that frozen embryos are children under the law, upending access to assisted reproduction for Texas families. 

Legal Changes at the State Level: 

• Brief Overview: 

  • Louisiana: Louisiana has passed a first-of-its-kind law classifying the abortion drugs mifepristone and misoprostol as controlled substances, despite their exemplary safety records and the fact that abortion is already entirely banned in the state. 

  • Tennessee: Tennessee has passed a law criminalizing “abortion trafficking,” becoming the second state to do so. The law criminalizes recruiting, harboring or transporting an unemancipated minor for abortion care without their parent or legal guardian’s consent. 

  • Texas: The Texas Supreme Court has issued a ruling in Zurawski v. Texas, the case brought by 20 Texas women and 2 doctors harmed by the state’s abortion bans. The Court determined that the law is sufficiently clear and any harm that the women suffered is a result of their providers inaccurately interpreting it. 

  • Indiana: Last week, an Owen County, Indiana Court heard arguments in a case challenging the state’s abortion ban. The case was brought by abortion providers who argue that the law’s definition of “serious health risk” is unclear and unconstitutionally narrow and that doctors are forced to deny care as a result of the ambiguity. The Plaintiffs also challenge the law’s exclusion of mental health from its life or health exceptions, explaining that this exclusion of “patients suffering from psychological and psychiatric conditions, including suicidal ideation, is both inconsistent with best medical practices and will harm pregnant Hoosiers.” They also note that failing to include mental health ignores the medical reality that pregnancy can cause issues around medication management and safety for those taking certain psychiatric medications. The Court has not yet issued any rulings, but we will be watching this case closely.
    

Deeper Legal Analysis 

• Louisiana: 

  • Louisiana’s Republican-led legislature and Governor have passed a first-of-its-kind law classifying the abortion drugs mifepristone and misoprostol as controlled substances. Abortion, including medication abortion, is already entirely banned in Louisiana, with extremely narrow and unworkable exceptions for the life or health of the pregnant person. Regardless, lawmakers have moved to further penalize possession of either medication without a prescription–placing them in the same category as drugs like opioids, Xanax, and Valium. The classification of a drug as a controlled substance also allows for additional tracking and monitoring of drug distribution, increasing risks of harmful pregnancy surveillance and criminalization. 

  • In addition to being redundant to Louisiana’s existing abortion ban, the law is also inconsistent with the safety and efficacy records of mifepristone and misoprostol. Taken together, either through telemedicine or in a clinical setting, the drugs are extremely safe and highly effective for terminating pregnancy in the first trimester. They also do not have any addictive properties like other designated controlled substances. 

  • The bill began as a measure to create the crime of “coerced abortion,” for circumstances where a pregnant person is given abortion medication without their knowledge or consent. The designation of the drug as a controlled substance was added by Senator Thomas Presly. The law itself allows for fines and prison time of up to five years for those found in violation. It does not apply to pregnant people who possess the drug for their own use, seeming to follow other ban states’ reticence to actually penalize the pregnant person themselves. Instead, it appears to take aim at the networks of people who may help a pregnant person obtain an abortion. This is likely in response to the rise in medication abortions seen in a post-Dobbs world. Proponents of the bill claim that it will help keep pregnant people safe from those who may try to end their pregnancies without their knowledge. But, the reality is that abortion bans actually empower abusers to wield pregnancy and fear of punishment under abortion laws as tools for control. 

  • The designation of mifepristone in Louisiana comes as the country awaits a ruling from the Supreme Court in Alliance for Hippocratic Medicine v. FDA, the case brought by anti-abortion doctors and groups challenging the FDA’s approval and treatment of mifepristone. 

• Tennessee: 

  • Tennessee has become the second state behind Idaho to pass a law criminalizing “abortion trafficking.” The bill, HB 1895, makes it a Class A misdemeanor to recruit, harbor, or transport an unemancipated minor for abortion care without their parent or legal guardian’s consent. Violators could face nearly a year in prison. 

  • Although proponents of the bill, and the one like it in Idaho, argue that it is meant to protect minors while preserving parental rights, these kinds of laws have immense potential to harm minors by cutting them off from critical support systems at a vulnerable time. Many minors do disclose unplanned pregnancies to their parents, but those who are not able to safely do so may turn to a trusted adult, like a non-parent relative, for support. Without that support, minors face an uphill battle in independently accessing care. They would have to navigate the patchwork of laws in other states and find a state that permits abortion without parental involvement (or navigate the judicial bypass system), obtain an appointment, pay for the procedure and associated expenses, and travel out of state–likely missing work or school. In other words, abortion trafficking laws detract from minors’ decisional autonomy about their own bodies. And, their enactment on top of preexisting total abortion bans demonstrates anti-abortion legislators' zeal to restrict reproductive health care by any means possible. 

  • Whether abortion trafficking laws will stand up to judicial scrutiny is an open question at this time. Idaho’s extremely similar law was blocked by a federal judge on First Amendment speech and expression grounds. In early May, the Ninth Circuit Court of Appeals heard oral arguments in the case, with at least two of the three judges appearing skeptical of the state’s framing of the newly-created crime as “trafficking.” The Court has not issued its ruling yet, and although a ruling holding the Idaho law unconstitutional would not be precedential over Tennessee’s law, it would likely inform how other states craft and pass similar laws. 

• Texas: 

  • Last week, the Texas Supreme Court issued a devastating ruling in Zurawski v. Texas, finding that the narrow exceptions to the State’s abortion ban are sufficiently clear, despite employing ambiguous non-medical language. 

  • The lawsuit was brought by 20 Texas women and 2 doctors who were each harmed by the lack of clarity in the State’s law. Each of the women’s stories is devastating, and several of the Plaintiffs have suffered permanent damage to their health and fertility as a result of their inability to access the care that they needed and deserved. The lawsuit was the first of its kind to be brought directly by pregnant people harmed by bans, rather than abortion providers. Notably, the Plaintiffs did not seek to actually overturn Texas’s bans–instead, they merely sought clarity about when providers can intervene to help their patients without risking severe penalties. 

  • In its Opinion, the Court threw blame for the harm caused by Texas’s laws squarely at the feet of providers, stating that a “physician who tells a patient, ‘[y]our life is threatened by a complication that has arisen during your pregnancy, and you may die…’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment.” But that’s exactly the problem, isn’t it? Doctors shouldn’t be charged with making a multi-step legal assessment; instead, they should be permitted to practice standard-of-care medicine consistent with their training, experience, and the facts of a particular case before them. 

  • The Court also dismissed the idea that the law discriminates on the basis of sex, finding instead that the classification is not directed at pregnant women, but at the procedure of abortion itself. With respect to the right to life, the Court stated that “the history of abortion regulation in Texas demonstrates the Legislature’s unmistakable commitment to protecting the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life,” echoing a fetal personhood framework that treats the pregnant patient and the fetus on equal terms. 

  • Similar patient-led litigation is ongoing in other states, including Tennessee and Idaho. And, the U.S. Supreme Court is currently considering whether Idaho’s abortion ban violates federal requirements under the Federal Emergency Medical Treatment and Active Labor Act (EMTALA). In the EMTALA case, the Court has the potential to issue a ruling similar to Texas’s-sidestepping the question of the harm that abortion bans are creating by claiming that blame lies with confused providers or hospitals, and not with the legislators who wrote the laws or the courts that interpret them. 

What else is happening in access? 

• Judge Catherine Eagles has finalized her April 2024 Order striking down several of North Carolina’s abortion restrictions as preempted by the FDA. North Carolina’s 12-week abortion ban has some of the most onerous restrictions and barriers in place for patients accessing care, and Judge Eagles’ Order alleviates several of those as they relate to access to medication abortion. 

• The Louisiana legislature has sent a “don’t say gay or trans” bill to the Governor Louisiana don’t say gay bill going to Governor Jeff Landry for his signature.   The bill prohibits discussion of gender, sexual orientation, or sexuality outside of the approved curriculum. 

• South Dakota anti-abortion activists are reportedly calling voters who signed in support of the state’s proposed abortion rights ballot initiative and asking them to rescind their signatures. 

• The Southern Baptist Convention that will take place in June plans to hold a vote on a resolution regarding whether the group should oppose in vitro fertilization and ask its adherents to do the same, citing fetal personhood-style arguments. Although this is of course not governmental action, Baptists make up the largest protestant denomination, and their agenda-setting can act as a barometer for what the religious right would like to see politicians support. Many still decry warnings about attempts to limit contraception and fertility treatments as unrealistic fear-mongering fueled by reproductive rights activists, but groups around the country are working to do exactly that. 

• A new California law allows Arizona providers to perform abortions in the state. The law was passed as a response to the Arizona Supreme Court’s ruling allowing an 1864 total abortion ban to be enforced in the state, and it is reflective of an ongoing effort by blue states to expand access for individuals in ban states. 

• Rolling Stone obtained the survey that the Florida Family Policy Council’s lobbying arm–Florida Family Action–uses to evaluate candidates for potential support. The survey inquires about whether the potential candidates support Florida’s abortion ballot initiative, when they think abortion should be limited, and what exceptions they would support. It also asks about other related issues, like the candidate's view on gender identity and sexual orientation. 

• A Florida Judge has ordered a revised financial impact statement in connection with the state’s abortion rights ballot initiative, as the previous statement did not reflect the recent state Supreme Court rulings allowing a 6-week ban to go into effect and rejecting a challenge to the previously enforced 15-week ban. 

• Nebraska pro and anti-abortion groups are working on competing ballot initiatives–each hoping to get their agenda before voters in November. Although pro-choice advocates are working to protect pre-viability abortion in the state’s constitution, anti-abortion activists have put forth a competing measure that would enshrine the state’s current ban on abortion after 12 weeks. 

• Research continues to show that medical residents are avoiding states where abortion bans are in place, limiting their ability to access a full education and provide full spectrum reproductive healthcare without fear of civil, criminal or professional consequences. This will have a downstream effect on the expansion of maternity care deserts and the ability of patients to access quality care in their home states. 

• As the election nears in November, candidates continue to speak out about their positions on abortion and reproductive health generally. As we have discussed previously in this Digest, the candidates' willingness to sign a federal abortion ban is not the only way to effectively outlaw abortion in all fifty states–many conservative politicians hope to use the Comstock Act to do just that, without the need for congressional approval. 

• Travel and wait times for Florida patients needing abortion care have significantly increased following the state’s 6-week abortion ban going into effect. According to research gathered by Middlebury University economics professor Caitlin Myers, wait times have increased at “30% of the abortion clinics in the states closest to Florida.” And, prior to the ban, “the average Florida resident lived 20 miles from a clinic” and had a five-day wait to access care, but after the ban, the driving distance increased to 590 miles “and the wait time expanded to almost 14 days,” forcing people to wait until later in their pregnancies to terminate. 

• Reproductive health and abortion rights are highly intersectional issues, impacting nearly every other issue area–this piece from the National Women’s Law Center highlights how access to reproductive health is critical for the well-being and decisional autonomy of people with disabilities. 

• Senator Marco Rubio and other anti-choice politicians have sent a letter to the Environmental Protection Agency suggesting that the use of mifepristone for medication abortion poses a risk to the American water system. In addition to lacking any sound scientific evidence to support this claim, the letter also demonstrates a stunning lack of understanding about pregnancy and miscarriage. In it, the authors state that as a result of mifepristone, fetal remains are “unbelievably” being flushed into America’s wastewater system. This assertion simultaneously ignores and stigmatizes the daily reality that countless pregnant people who suffer miscarriages at home face. 

• Iowa Attorney General Brenna Bird has agreed to resume paying for emergency contraception for victims of sexual assault, after discontinuing the support over a year ago purportedly in connection with an audit. The state will not pay for abortion services for rape victims. 

• Democrats in the Senate have again introduced legislation to protect IVF, as state-level threats to fertility treatments increase.