Developments in Abortion, Autonomy, and Access: 

This week’s Digest is coming to you a day earlier and a bit shorter than usual due to the holiday, but it is still jam-packed with critical reproductive health news. As the Supreme Court winds up its term, it has released its order dismissing  Moyle v. United States, the case challenging Idaho’s abortion ban under EMTALA, and state-level litigation, ballot initiatives and legislation continue to evolve rapidly. Please read to the end for the news that you need to know.

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This Week’s Must Read:

Two years post-Roe, this week’s must-reads from KFF and Vox take a look at where abortion rights stand today. Despite the Supreme Court’s promise in Dobbs to return abortion to the states, teh Court heard two abortion-related cases in this term alone. And, the states continue to enforce a patchwork of inscrutable abortion bans, restrictions and regulations.

Legal Analysis: 

• The Supreme Court and EMTALA:

  • In the biggest reproductive health news since our last Digest, the Supreme Court has dismissed Moyle v. United States, the case challenging Idaho’s abortion ban as a violation of the Emergency Medical Treatment and Active Labor Act (EMTALA). Idaho’s total abortion ban contains an exception only to save the life of the pregnant person, not to preserve their health. However, under EMTALA, federal law requires any hospital that receives Medicare funding to provide stabilizing care to any patient that presents with a life or health-threatening emergency. In certain circumstances, that stabilizing care may involve performing an abortion. The Biden Administration sued the state, arguing that the portion of Idaho’s ban that doesn’t allow abortions to preserve health is preempted by EMTALA’s stabilization requirement. Idaho vigorously defended their state law–fighting for the right to deny pregnant people abortion care in emergency situations. 

    Although two lower courts temporarily blocked Idaho’s law during the pendency of litigation, the Supreme Court removed that stay in January, allowing Idaho to fully enforce its ban and granting the Petitioner’s request that the Court hear the case prematurely. Oral arguments were heard in April, with the Justices questioning attorneys from both sides about the parameters of the state’s law. The female Justices, including Justice Barrett, appeared highly skeptical of Idaho’s inability to articulate the circumstances under which a provider can safely provide an abortion in the state. However, the conservative Justices–particularly Justices Alito and Thomas appeared open to Idaho’s claim, with Justice Alito unilaterally raising questions about fetal personhood. 

    In the Court’s June 27th Order, rather than ruling on the merits, the Court dismissed the case as improvidently granted–meaning that it effectively decided that it should not have prematurely agreed to hear the case in the first place. Although this decision also allows the lower courts’ injunction to go back into place, giving Idahoans temporary relief, it falls far short of what is needed to protect the rights of pregnant people under federal law. As Justice Jackson stated in her concurrence, the Court’s failure to resolve the conflict between federal and state law “is not a victory for pregnant patients in Idaho[;] it is a delay.” And that delay has dire consequences. In Justice Jackson’s words, while the “Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.” The Court was well-positioned to provide clarity to the dispute before it, but instead, it kicked the can down the road, all but ensuring the issue will land back before the court in the coming months or years. 

    This case, like Alliance for Hippocratic Medicine v. FDA, has an obvious and correct legal answer. At play are state and federal statutes that are in direct conflict with one another. Under well-established Supremacy Clause and federal preemption principles, the state law must give way to federal protections. Although the Court did not take the extraordinary step of ruling to the contrary, its failure to issue a decision on the merits should not be praised as moderate but viewed as an abdication of the judiciary’s responsibility. 

• Iowa:

  • The Iowa Supreme Court has issued a ruling greenlighting the constitutionality of  the state’s ban on abortion after 6 weeks. Although the law briefly went into effect for several days last year, it was quickly blocked by a lower court ruling, allowing Iowans to continue to access abortion until 20 weeks into pregnancy. The 6-week ban, which will likely take effect in the coming weeks includes exceptions for the life or health of the pregnant person. Prior to 20 weeks gestational age, it also includes exceptions for lethal fetal anomalies and cases of  rape or incest if reported to law enforcement within 45 or 140 days respectively. The requirement that victims of rape or incest report the crime against them is of course entirely medically unnecessary and incredibly cruel. Victims deserve to have autonomy over decisions about how to proceed in handling crimes committed against them–that decision should not be a barrier to accessing health care. And we know by now that exceptions for the life or health of the pregnant person are unworkable in practice and have resulted in diminished patient care and a culture of fear and confusion for both patients and providers.
    
    The Iowa Supreme Court decided the case under rational basis review–meaning that the state only had to show that its law was rationally related to a legitimate state interest. Rational basis review is the lowest level of scrutiny that a court can apply in a constitutional challenge, and it is rare that a state is unable to carry its burden under the standard. In a striking dissent, Chief Justice Susan Christensen criticized the majority for a decision that “strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution.” She went on to call out the majority’s failure to contend with the reality that Iowa’s history of regulating abortion excised women from the conversation entirely, writing that “not only did women have no say in the drafting of our state constitution, but they had no input in the statutes being enacted in the state legislature and no ability to vote for the elected officials responsible for these statutes.” 

• Fetal Personhood in State Platforms:

  • The Republican parties in several states, including Texas, Idaho and North Carolina appear to formally endorse fetal personhood ideas, including opposing IVF in their party platforms. For example, the official 2024 party platform in Idaho formally opposes abortion, including the destruction of human embryos–a routine part of the IVF process. Meanwhile in Texas, the GOP’s platform defines life as beginning at fertilization and calls for equal protection for the “preborn.” Although Idaho and Texas are enforcing total abortion bans, stopping at prohibiting abortion is evidently not far enough. If implemented fully, the state’s platforms would result in IVF no longer being available, likely limit the availability of common contraception methods like IUDs, and heighten pregnancy criminalization and surveillance. If fetuses are recognized as full persons under the law, a whole litany of legal consequences and questions necessarily follow. For example, charges akin to child abuse or neglect could be brought against a pregnant person for things like eating the wrong thing during pregnancy or drinking alcohol, and miscarriages could be scrutinized as possible feticide. A federal endorsement of fetal personhood laws could spell the end of abortion access in its entirety.

• Tennessee and Abortion Trafficking:

  • An abortion rights advocate and a Tennessee lawmaker have filed a lawsuit challenging the state’s newly passed abortion trafficking law. The law criminalizes assisting a minor in obtaining an abortion without parental consent. It contains no exception for cases where the pregnancy is a result of rape or incest committed by a parent, and the minor’s own consent to the abortion is not a defense. It is the second law of its kind to pass, following Idaho’s lead. The law took effect on July 1st, with two judges denying the plaintiffs’ request to block its enforcement while the case is under consideration. The lawsuit alleges that the statute is unconstitutionally vague in its failure to adequately define recruitment and that it infringes on their First Amendment rights. Idaho’s nearly identical law has been blocked on First Amendment grounds for the time being.

• Kentucky:

  • In Kentucky, a judge has thrown out a case brought by Three Jewish women challenging the state’s abortion ban. The Judge found that the women, each of whom alleged that they were deterred from expanding their families because of the risks created by the ban, lacked standing to bring the claim because they are not pregnant at this time or currently undergoing fertility treatments.

• Michigan:

  • A Michigan court has blocked three medically unnecessary abortion restrictions following the passage of the state’s reproductive rights constitutional amendment. Specifically, the Court blocked a 24-hour waiting period requirement, mandatory biased counseling and the prohibition on Advanced Practice Clinicians performing abortions. Litigation challenging remaining abortion restrictions will be necessary in any state that passes an abortion rights constitutional amendment.

• The Supreme Court and Gender Affirming Care:

  • After two years of heightening attacks on trans rights and gender-affirming care, the Supreme Court has agreed to hear a challenge to Tennessee’s ban on gender-affirming care for minors. The Court’s opinion will have massive implications for access to care across the country, as about half of the states have enacted bans.  The Court will hear the case on Fourteenth Amendment Equal Protection grounds, testing whether the 6-3 conservative majority will continue to erode civil rights jurisprudence in a post-Roe legal landscape.

• Montana:

  • Organizers in Montana have collected enough signatures to get their abortion rights ballot initiative before voters in November. The Montana Secretary of State will have to approve the verification of the signatures before the initiative can officially move forward.

• Texas Medical Board:

  • The Texas Medical Board has released guidelines for navigating the state’s abortion ban. However, the guidance once again fails to meaningfully clarify the law, leaving providers to navigate the same legal uncertainties that they have been faced with since Texas began enforcing its abortion bans.

• Nebraska:

  • 1 year into the state’s 12-week abortion ban, Nebraska providers reflect on how their experience treating patients has changed. The providers described increased difficulties in counseling patients and treating complicated pregnancies, having to send patients out of state for needed care, concerns about legal gray areas, and increased requests for sterilization.

• South Carolina:

  • Three of the “sister senators” who worked to block South Carolina’s 6-week abortion ban from going into effect have been defeated in their primaries, putting the state at a heightened risk of passing a total abortion ban. 

• Infant Mortality in Texas:

  • New research shows that infant mortality in Texas rose by 13%, as compared to a 2% rise nationally, after the passage of SB8, the state’s ban on abortion after detection of a fetal “heartbeat.” The rise in mortality rates is likely attributable in significant part to the state’s failure to include any exceptions for lethal fetal anomalies in its abortion bans, leaving pregnant people with no choice but to carry doomed pregnancies. The CDC has similarly found that newborn mortality rates in the United States rose in 2022 for the first time since 2001, highlighting the impact of the Dobbs decision and the resultant wave of severe state-level abortion bans.

• Texas and Title IX:

  • Texas Attorney General Ken Paxton and two professors at the University of Texas have filed a lawsuit challenging the Department of Education’s interpretation of Title IX’s anti-discrimination provisions. The relevant guidance prohibits discrimination on the basis of sex, which encompasses pregnancy and pregnancy-related conditions, including abortion. The professors assert in their declarations that they will not follow the guidance and excuse student absences for “elective” abortions–in other words, they are suing for the right to academically penalize students who have abortions, including legal out-of-state abortions, while accommodating students with pregnancy-related absences that the professors deem acceptable. The Professors’ declarations also seem to disclaim their willingness to work with openly transgender or gender-fluid teaching assistants, stating that they will not allow “cross-dressing'' while interacting with students.

• Texas and Gender Affirming Care:

  • The Texas Supreme Court has issued an opinion reversing a lower court’s decision and upholding SB 14, the state’s ban on gender affirming care for minors. The Court found that the law does not infringe on the constitutional rights of the families, physicians and advocates who brought the lawsuit.