Developments in Abortion, Autonomy, and Access: 

In the past two weeks, legal changes to abortion, autonomy and health care access have unfolded at both the state and federal level. These developments include the passage of Iowa’s new 6-week abortion ban, the FDA’s approval of an over the counter birth control pill, and ongoing legal battles over the right to gender-affirming care. This week’s digest also has a great deal to report in its “more news in access” section, as concrete changes to the law slow down with the close of state legislative sessions but litigation and policy efforts continue. With today’s digest, we are also kicking off an “issue of the week” series highlighting strategies that are being used to push back against abortion bans, with our first post being guest-written by L4GG intern Veronica Dickstein.

Please read on for more detail and discussion.

Legal Changes at the State Level: 

• Brief Overview: 

• Iowa: In a single-day special legislative session called for the “sole purpose” of passing anti-abortion restrictions, Iowa pushed through a renewed 6-week abortion ban. The ban was immediately subject to legal challenge, and although it briefly took effect, a judge issued a temporary injunction halting its enforcement on Monday, July 17.

• Connecticut: Connecticut Governor Ned Lamont has signed additional protections for reproductive health care into law, protecting both providers and patients.

• Idaho: Groups have filed a lawsuit challenging Idaho’s abortion trafficking law, arguing that it violates their right to interstate travel, as well as their First Amendment rights to speak and engage in expressive conduct.

• FDA: On the federal level, the FDA has approved an over-the-counter birth control pill for the first time.
  

Deeper Legal Analysis 

• Iowa: 

  • In a single-day special legislative session called for the “sole purpose” of passing anti-abortion restrictions, Iowa pushed through a renewed 6-week abortion ban, despite polling that clearly reflects Iowans’ support for abortion rights.  The ban was immediately subject to legal challenge. Although it briefly took effect, a judge issued a temporary injunction halting its enforcement on Monday July 17, preserving access to abortion until 20 weeks gestational age for the time being. The bill  bans abortions after the sixth week of pregnancy, based on the detection of a “fetal heartbeat.” It is nearly identical to a 2018 law that the state Supreme Court has declined to reinstate, prompting Governor Reynolds' renewed attempt at circumventing that judicial deadlock by enacting this new ban. If this legislative maneuvering sounds familiar, it's because it is. Other states, like South Carolina, have likewise responded to courts’ blocking of abortion bans by simply passing functionally identical new laws. 

  • The latest Iowa ban includes exceptions for vaguely defined “medical emergencies” throughout the pregnancy. It also contains exceptions until 20 weeks for cases involving fetal anomalies that are deemed “incompatible with life,” rape (if reported within 45 days) and incest (if reported within 140 days). As we have discussed many times in this digest, we know that requirements that victims of rape or incest report those crimes are cruel, medically unnecessary, and impose barriers to safely accessing health care. They are also inconsistent with research that shows that many victims are unwilling or unable to safely report the crime. Although we have seen the consequences of bans just like this one in the year since Dobbs, Republicans continue to go to extraordinary lengths to enact them, placing patients, providers and our entire democratic process at risk.
    

• Connecticut:

• Connecticut Governor Lamont signed additional protections for reproductive health care into law. The series of bills were approved by the Connecticut general assembly prior to the end of the legislative session, and, in the Governor’s words, they are enacted to “safeguard the rights of all persons in Connecticut to access an abortion and the contraceptive care they choose.” As other states restrict reproductive rights, laws like Connecticut’s are aimed at preserving them. The new laws create the following protections:

  • Public Act 22-128 protects medical providers from adverse actions taken by another state based on the provision of legal and competent reproductive health care services. The protections are designed to cover provision of care to individuals traveling to Connecticut from other states where abortion is illegal. The law protects providers from suspension, revocation or denial of licensure based on their provision of that care. 

  • Public Act 23-52 allows pharmacists to prescribe birth control without first requiring the patient to have an appointment with their physician. This law is aimed at increasing access to contraception, particularly in rural and remote areas where reproductive health care is limited. 

  • Public Act 23-41 increases access to reproductive care for college students at public institutions by requiring the institutions to develop a plan by January 1, 2024 that addresses student needs for contraception, abortion and gender-affirming care. The goal of this law is to increase access for students who live on campus and rely on their educational institutions for living necessities including food, housing, transportation, and health care needs. 

  • Public Act 23-56 aims to protect the data privacy of patients by establishing restrictions on the collection, sharing and selling of personal health data by business and service providers who use online platforms. Although the law uses broad healthcare language, it also explicitly protects reproductive rights. Protection of patient data is key in safeguarding against investigations into legally provided health care.
    

• Idaho 

• Groups have sued to challenge Idaho’s abortion trafficking law, arguing that it violates their right to interstate travel, as well as their First Amendment rights to free speech and expression. This challenge is a crucial one to watch, as its success or failure will  inform whether other states enact similar “abortion trafficking” legislation. As a reminder, Idaho’s law defines assisting a minor across state lines to receive an abortion without their parent or guardian’s consent as “trafficking.” Any adult who is prosecuted under the law faces the prospect of 2-5 years in prison. The language of the law is broad and ambiguous, and what might constitute a parent’s “consent” is unclear; this lack of clarity is purposeful and will ultimately “deter ever more conduct because people don’t know where the line is.” 

• The Department of Homeland Security explains that “human trafficking involves the use of force, fraud or coercion to obtain some type of labor or commercial sex act.” The conduct criminalized by Idaho’s law does not come close to resembling any accepted definition of “trafficking.” Under the law’s express terms, if a minor becomes pregnant, determines that they want an abortion and asks a trusted adult for help in safely obtaining that abortion, the adult could find themselves facing a prison sentence of up to 5 years. The minor’s consent to the abortion is not a defense to the law. Because courts are generally more willing to allow restrictions on the rights of minors, Republicans across the country have strategically cloaked restrictive laws in a false narrative about preserving parental rights and protecting children.
  

• FDA: 

• On the federal level, the FDA has approved the first over the counter birth control pill, a move lauded by reproductive rights advocates as concern grows about access to contraception becoming a renewed target of republican attacks. The medication, marketed as Opill, was first approved for prescription usage over 50 years ago, and the FDA has determined that it is both safe and effective in preventing pregnancy. The drug is expected to become available at pharmacies across the country in early 2024, although the cost is not yet known. Additionally, a growing number of states are allowing pharmacists to prescribe birth control, removing the obstacle of requiring the patient to have a physician visit prior to obtaining medication. According to The Guttmacher Institute, 24 states and the District of Columbia currently allow pharmacists to prescribe birth control. Although access to contraception, including birth control pills, is an important part of reproductive freedom, it does not eliminate the need for safe and legal abortion. Not everyone has access to contraception. Not every sexual encounter is consensual. No contraceptive works 100% of the time, even when used correctly. Not all wanted pregnancies are viable. Each of these realities (and countless others) mean that, although the FDA’s approval of this medication for over-the-counter use is certainly progress, it is no substitute for abortion rights.
  

What else is happening in access? 

• A single Republican Senator, Tommy Tuberville of Alabama, is blocking approximately 265 military officer nominations, citing his disapproval of the Pentagon’s policy of supporting service members and their families in seeking abortion care. Seven former defense secretaries have criticized this move and expressed concerns that it harms military readiness and national security. Senator Tuberville’s stonewalling of the nominations comes as contentious legislative debates continue over the question of military spending and abortion. 

• The U.S. Court of Appeals for the Sixth Circuit has reinstated Tennessee’s ban on gender affirming care for minors while the litigation challenging the ban plays out. This was the first time a federal court allowed a gender affirming care ban to take effect, and the Court’s opinion cited Dobbs (the case that overturned Roe) as supporting authority. Any expansion of Dobbs to limit other privacy rights should be a cause for great concern. You can read more about the relationship between the fight for trans rights and the fight for reproductive rights here. 

• Approximately a week after the Sixth Circuit’s opinion came out, a federal judge lifted the injunction on Kentucky’s ban on gender affirming care, allowing it to take effect, 

• State laws banning gender affirming care for minors are forcing trans youth and their families to uproot their lives and leave their own communities in order to seek gender affirming healthcare in other states. You can read some of their stories here. 

• Litigants in Texas are suing for clarification to the state’s total abortion ban; these women went to court this week and provided moving testimony about their experiences trying to access necessary health care under the unclear and medically ambiguous terms of the ban. 

• A Nebraska judge heard oral arguments this week in the ACLU’s case challenging the state’s combined gender-affirming care and abortion ban. No ruling has been issued at this time. 

• A relatively small Christian conservative group is making headway in its efforts to promote its agenda at the local level. The group has organized around support for things like limitations on sex education in school, banning books that discuss subjects like abortion or gender identity, and limiting diversity and inclusion efforts. 

• Abortion advocacy group “Plan C” explains how patients can access abortion pills in every state.

• Australia is set to ease restrictions on medication abortion, citing the need to improve accessibility for remote and rural communities.

Issue of the Week: Freedom of Religion and Abortion

This week’s “Issue of the Week” kicks off a series focusing on the different strategies being used to protect reproductive freedom; it has been guest written by L4GG intern Veronica Dickstein.

In the wake of recent disheartening SCOTUS decisions and the erosion of reproductive rights in many U.S. states, it can be difficult to  see the positive developments and progress made  that provide hope for the future. Yet, across the country, attorneys and advocates are using creative strategies to protect bodily autonomy in a post-Dobbs legal landscape.

One particularly compelling argument is currently being made in Florida, Kentucky, Missouri, and Indiana. Plaintiffs in each of these states argue that abortion bans restrict their religious freedom and are therefore unconstitutional or in violation of their state’s Religious Freedom Restoration Acts. This strategy is especially interesting, as anti-choice advocates have historically claimed religion as their own and positioned it as diametrically opposed to abortion rights. However, like any aspect of religion, beliefs about abortion are not a monolith–they vary greatly between faith traditions and the views of the individuals who follow them. 

The following cases make this argument in court, arguing that the plaintiffs’ ability to freely exercise their religious beliefs must include access to reproductive freedom:

• Florida - Generation to Generation v. State of Florida

  • The Plaintiffs in this case are suing the State of Florida, contending that the Reducing Fetal and Infant Mortality Act is unconstitutional.They argue that because Jewish law states that “abortion is required if necessary to protect the health, mental or physical, or well-being of the woman,” and Florida’s law does not allow for abortion in all of these circumstances, the act unconstitutionally violates the plaintiffs’ freedom of religion.

  • This case is ongoing.

• Kentucky

  • The Plaintiffs in this case filed suit against Kentucky Attorney General Daniel Cameron and Jefferson County Attorney General Thomas Wine.

  • This case draws on Kentucky’s Religious Freedom Restoration Act, which states that “no preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity.” 

  • Plaintiffs argue that the bill’s declaration that life begins at conception conflicts with commonly held Jewish beliefs, and therefore violates their religious freedom. They also claim that the law’s abortion restrictions give preferential treatment to those with Christian beliefs and are, therefore discriminatory.

  • This case is ongoing. 

• Missouri - Rev. Blackmon v. Missouri 

  • Missouri’s abortion ban was described by state legislators in explicitly religious terms. Missouri Representative Adam Schnelting said the following when discussing the ban: “I know of no greater way of affirming the natural rights of man than to declare that they are a gift from our Creator that neither man nor government can abridge.” The Plaintiffs in this case argue  that this faith-based justification for the ban  is a violation of the separation of church and state, something clearly protected in Missouri’s Constitution. Like the Florida and Kentucky plaintiffs, the Missouri Plaintiffs also argue that  this ban forces all Missouri residents to adhere to a definition of life only held by some specific sects of Christianity. The 13 Plaintiffs, all religious clergy members belonging to different Christian sects, Unitarian Universalism, and Judaism, do not share those religious beliefs.

  • This case is ongoing.

• Indiana - Anonymous Plaintiffs, Hoosier Jews for Choice v. Medical Licensing Board of Indiana

  • As mentioned in L4GG’s 7/07/23 repro digest, this case argues that Indiana’s abortion ban infringes on  the religious freedom of the Jewish, Muslim, and spiritual plaintiffs, in violation of Indiana’s Religious Freedom Restoration Act. The plaintiffs’ respective religions do not ascribe to the belief that life begins at conception or that a fetus is entitled to the same rights as a born child. Like other cases, this one argues that Indiana’s constitutional clause prohibiting the state from giving one religion preferential treatment over another is violated by the state's extreme abortion ban.

  • This case is especially important because the plaintiffs were granted a preliminary injunction by Indiana state trial court in December 2022. The state has appealed this injunction and Americans United along with other organizations filed an amicus brief arguing that the injunction should hold. Although there is no clear outcome for this case at this time it demonstrates that courts even in states hostile towards reproductive rights and bodily autonomy may respond favorably to a religious-freedom-oriented argument. 

  • This case is ongoing.

   

Using religion to combat abortion bans is ingenious, because it is so often weaponized to create and promote them. This irony is compounded in the cases that use their states’ Religious Freedom Restoration Acts, as these same acts are sometimes used to discriminate against LGBTQ+ people, something fighting abortion bans helps combat. Contrary to the recent abortion bans that often, whether explicitly or implicitly, use Christianity as an excuse for restrictive legislation, religion in America is not monolithic. These cases serve as beacons of hope in tough times for reproductive rights in America, using religious diversity as a shield to protect our democracy, rather than a sword to cut it down.