Developments in Abortion, Autonomy, and Access: 

In this week’s Digest, we cover changes to and trends in reproductive health law at the state and federal level. With state legislative sessions having largely adjourned for the year and the Supreme Court now in recess, reproductive health news will be coming from different sources and at a different pace than in the first half of the year. In order to continue to cover the news in the most responsive and effective way possible, we will be periodically adapting the format of the Digest. Please read on to the end for a comprehensive overview of the reproductive rights, health equity and bodily autonomy news that you need to know. 

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This Week’s Must Read:

This week’s must-read comes from Vox and outlines the current crisis facing our Supreme Court. Although the Court only heard two reproductive rights-specific cases this term, the Court’s decisions across the board illustrate an alarming unraveling of critical and well-established democracy-protecting precedent and a stunning disregard for judicial consistency. The impact of the Court’s decisions this term will be felt across broad issue areas, undermining the stability and security of many of our most fundamental rights. 

Legal Analysis: 

• Wisconsin: The Wisconsin Supreme Court has agreed to hear two cases impacting abortion rights in the state. The challenges revolve around the post-Dobbs enforceability of a 175-year-old total abortion ban and whether the state’s constitution protects the right to abortion. Attorney General Josh Kaul argues that the 1849 ban is superseded by the state’s 1985 law permitting abortion until fetal viability, and Planned Parenthood argues that the ban is unconstitutional under established Wisconsin precedent. Last year, a state court ruled that the 1849 ban only criminalizes assaulting a pregnant person in order to end their pregnancy but does not apply to lawful abortions, giving Planned Parenthood the assurance it needed to resume providing abortions for the first time in over a year. Anti-abortion officials appealed that decision. The state’s high court currently has a liberal majority, following the election of Justice Janet Protasiewicz, and the cases stand a good chance of ending in favor of abortion rights. 

• Kansas: The Kansas Supreme Court has permanently blocked a state law banning dilation and extraction procedures, the most common second trimester abortion procedure. The Court upheld prior precedent finding that the right to an abortion is guaranteed under the Kansas Constitution. Notably, in 2022, Kansas voters rejected a ballot measure that would have excised abortion from the state’s constitution. Abortion remains legal in Kansas until 22 weeks. 

• Arkansas: Arkansas Secretary of State John Thurston has rejected a proposed abortion rights ballot initiative. If passed, the amendment would protect the right to abortion until 18 weeks gestational age for any reason and throughout the pregnancy for cases of rape, incest, lethal fetal anomaly or risks to the pregnant person’s life or health. In rejecting the initiative, the Secretary of State asserted various technical errors, including an alleged failure to submit certain required paperwork. Arkansans for Limited Government, the group behind the effort, disputed the Secretary of State’s determination, stating that they had worked with the Secretary’s office throughout the process to ensure total compliance with all rules and regulations. The rejection of Arkansas’ ballot proposal is the latest in a string of attempts to block pro-choice initiatives across the country using litigation, misinformation campaigns, delay tactics, attempts to raise the threshold to pass constitutional amendments, and issuing competing anti-choice ballot initiatives. Arkansas advocates have asked the state supreme court to overturn the Secretary of State’s rejection of the initiative. 

• Arizona: Arizona advocates have turned in more than double the signatures needed to advance its pro-choice ballot initiative, moving it one step closer to the ballot box. If passed, the amendment would protect the right to abortion until fetal viability, easing the current state restriction on access after 15 weeks. The initiative effort was galvanized by the state supreme court’s decision in April to allow an 1864 total abortion ban to go into effect. Although that ban was legislatively repealed following the court’s ruling, it underscored the urgency of enshrining permanent protections for health care into state law. Despite having turned in enough signatures, Arizona for Abortion Access, the group behind the measure, is facing resistance from the state. The Republican-led Arizona Legislative Council has proposed language for the voter pamphlet that uses the term “unborn human being,” rather than the medically and scientifically accurate term ‘fetus.’ Arizona for Abortion Access has filed suit challenging this language, arguing that the language is politically charged and that voters have a right to impartial and accurate information. 

• Abortion and Federal Politics: In the past two weeks, the RNC released its official policy platform, and former president Donald Trump announced his running mate as anti-abortion Ohio Senator J.D. Vance. 
  
  The RNC’s newly released platform endorses the idea of fetal personhood, stating that, on the “Issue of Life” the party “believe[s] that the 14th Amendment to the Constitution of the United States guarantees that no person can be denied Life, or Liberty without Due Process, and that the States are, therefore, free to pass Laws protecting those rights.” Although the platform goes on to say that it will support prenatal care, access to birth control, and IVF, the concept of fetal personhood is in direct conflict with IVF, as well as certain forms of contraception like IUDs. In addition to potentially halting access to IVF, fetal personhood laws that treat embryos and fetuses as full human beings would result in increased surveillance and criminalization of pregnant people and an endless cascade of logically and legally absurd inconsistencies. And, although an explicit call for a national abortion ban was not included in the RNC’s platform, fetal personhood laws could achieve the same effect, and an anti-choice administration could functionally ban abortion in its entirety by arguing for strict enforcement of the Comstock Act. 
  
  As the RNC holds its convention this week, former president and Republican nominee Donald Trump has announced that his running mate will be Ohio Senator J.D. Vance. Although Vance’s statements on abortion have flip-flopped over the course of his political career, his history of opposing abortion rights is irrefutable. For example, he has indicated that he does not support abortion even in cases of rape or incest–a widely unpopular policy position. He also boasts an A+ rating with anti-abortion group Susan B. Anthony Pro-Life America, and has expressed his support for the concept of fetal personhood. He opposed Ohio’s abortion ballot initiative,  calling its passage “morally repugnant.” He also appears to oppose no-fault divorce, a legal system that grants married people autonomy over their own relationship decisions. 

• South Dakota: A South Dakota judge has dismissed a lawsuit attempting to remove a pro-choice ballot initiative from the November ballot, allowing the amendment to move forward. If passed, the amendment would effectively codify the Roe standard, prohibiting state restrictions on abortion in the first trimester, and only allowing restrictions that are reasonably related to the pregnant person’s health in the second trimester. 

• Florida: The fight for Florida’s abortion rights ballot initiative continued this week, as Floridians protecting Freedom, the group behind the effort, received a revised financial impact statement with a distinctly anti-abortion tilt. Although the financial impact statement is supposed to be an apolitical communication about the potential cost of implementing a proposed amendment, the revised statement opines on how the initiative would decrease “live births” in the state and significantly increase abortion. The statement also warned about parental consent laws for abortion if the amendment passes and raised concerns about taxpayer dollars going towards funding abortion in the state. Proponents of the ballot initiative continue to fight back against anti-abortion activists and lawmakers’ relentless attempts to strip the amendment from the ballot. 

• EMTALA: In the wake of the Supreme Court’s decision to dismiss Moyle v. United States, the Biden Administration has issued a letter reminding hospitals of their federal obligation to perform stabilizing abortions in emergency situations under the Emergency Medical Treatment and Active Labor Act (EMTALA). This is the second letter of its kind, with the first spurring Idaho to argue that, under its total abortion ban, physicians could only provide abortions in cases where it was necessary to save the pregnant person’s life–but not in cases to preserve their health. In response to the Administration’s second letter, the House Appropriations subcommittee on Labor, Health and Human Services, and Education unveiled a budget that includes a rider that “none of the funds made available by this act may be used to implement, administer, or enforce” the EMTALA executive order. 

• Iowa: In our last Digest, we reported on how the Iowa supreme court has ruled that the state can enforce a 6-week abortion ban, using rational basis review to find that the law was constitutional. Providers in Iowa are now bracing for how that ruling will impact their ability to practice medicine, citing concerns about the unclear and non-medical language employed in the law. These same concerns have been raised by providers in abortion-restrictive states across the country. 

• Contraception and Emergency Contraception Use in Ban States: New research from the University of Southern California shows a sharp decline in contraception and emergency contraception use and prescriptions in states with abortion bans in place. To explain this decline, researchers pointed to significant clinic closures following the Dobbs decision and uncertainty about the legal status of emergency contraception options like Plan B, which anti-abortion groups erroneously label as an abortion inducing drug. The study showed that in states like Texas, where a total abortion ban is in place, birth control prescriptions dropped by about a third and emergency contraception dropped by nearly half. After the Dobbs decision overturned Roe, allowing a patchwork of abortion bans and restrictions to go into place at the state level, many family planning clinics were forced to close their doors. Although many of these clinics performed abortions, they also were a critical resource for birth control for many people. This new reporting, combined with the reporting that we discussed last week about the rise of infant deaths in Texas paints a grim picture about the effects of abortion restrictions on the landscape of reproductive healthcare. 

• Gender Affirming Care in Ohio: In Ohio, a trial over the constitutionality of the state’s gender affirming care ban began on Monday, July 15th. The ban was passed over Governor Mike DeWine’s veto, and would apply to hormone replacement therapy, puberty blockers and gender affirming surgery.  

• Gender Affirming Care in Florida: Federal District Court Judge Robert Hinkle has once again denied Florida’s request to enforce its gender affirming care ban, affirming a permanent injunction on the state’s restrictions. Judge Hinkle’s opinion called out the state’s clear ideological motivations in passing the legislation, writing that the “elephant in the room should be noted at the outset[;] Gender identity is real[,] [t]he record makes this clear,” and that “some legislators plainly acted from old-fashioned discriminatory animus,” referring to trans people as "mutants" and "demons.” Invoking Martin Luther King Jr., Judge Hinkle opined that, in time, discrimination against trans people would be relegated to the past, as “[t]o paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice.” 

• No-Fault Divorce: Certain lawmakers have set their sights on ending or restricting no-fault divorce, the legal standard on the books in all 50 states that allows spouses to end their marriage without having to prove fault on the other spouse’s part. These laws are critical for allowing individuals to decide for themselves when to leave a marriage, particularly in unhealthy or abusive relationships. After the fall of fault-based divorce, there was a decrease in female suicide, as well as domestic abuse. Attacks on no-fault divorce are consistent with an ongoing trend of restricting and rolling back rights relating to personal autonomy and decision making, and handing that power back to the state. 

• Abortion Polling: Polling continues to show incredibly high rates of support for abortion and reproductive rights. One poll shows that in states with abortion bans in place, only about 11% of residents support total abortion bans; by contrast, over half of residents support abortion being legal in all or most cases. Another poll indicates that about 6 in 10 Americans believe abortion should generally be legal for any reason, and 8 in 10 support abortion in cases to preserve the pregnant person’s life or health, cases of lethal fetal anomaly, or pregnancies resulting from rape or incest. Despite consistent polling on the popularity of the right to choice, anti-abortion lawmakers continue to pass restrictions, take aim at other aspects of reproductive health care and bodily autonomy, and vigorously attempt to stymie citizen-led ballot initiatives.

• Abortion Data Collection and Privacy: Concerns about increased abortion data collection are on the rise, as states seek to collect more and more information on patients and HIPAA protections remain insufficient to fully preserve patient privacy.