Developments in Abortion, Autonomy, and Access:
Rapid 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. Both North Carolina and Indiana received the green light from their respective supreme courts to further restrict abortion access. Iowa and Ohio are both engaged in efforts to subvert direct democracy. South Carolina heard oral arguments in the case challenging a fetal heartbeat law, and Texas quietly passed new abortion ‘clarifications.’ Additionally, advocates continue to push back against the legality of bans on gender-affirming care for minors, and Republican lawmakers continue their attempts to restrict that care. Please read on for more detail and discussion.
Legal Changes at the State Level:
Brief Overview:
North Carolina: In North Carolina, a twelve-week abortion ban with limited exceptions for rape, fetal anomaly, and life or health of the pregnant person has gone into effect, over legal objection. The text of the ban was subject to several last-minute changes that seemed aimed at eliminating the lawsuit challenging the law.
Indiana: The Indiana Supreme Court has issued a ruling clearing the way for the state’s near-total abortion ban to go into effect.
South Carolina: Last week, the South Carolina Supreme Court heard oral arguments in the case challenging the state’s renewed ban on abortion after fetal cardiac activity is detected (a “6-week ban”).
Iowa: Iowa Governor Kim Reynolds has called for a special legislative session devoted to enacting “pro-life legislation.” This announcement comes after the Iowa Supreme Court issued a split ruling that continued to block Governor Reynolds’ 6-week abortion ban from going into effect.
Ohio: Ohioans have successfully obtained enough signatures to get an amendment that would create constitutional protection for abortion onto the ballot in November.
Deeper Legal Analysis
North Carolina:
North Carolina has implemented a twelve-week abortion ban, with limited exceptions for rape or incest, lethal fetal anomaly and the life or health of the pregnant person. The law, which was passed over Democratic Governor Roy Cooper’s veto, went into effect on July 1st. Planned Parenthood South Atlantic and a physician who performs abortions have brought a lawsuit challenging the law, arguing that it is unworkably vague and contradictory. However, the courts allowed the law to go into effect while that litigation plays out, only temporarily blocking one small provision of the law which required abortion providers to document the “location of the pregnancy” in the body prior to performing the abortion. Notably, just days before the law’s effective date, North Carolina Republicans rolled out new ‘clarifications’ that seemed designed to address several of the specific complaints listed in the lawsuit challenging the ban. The revisions to the law clarify that medication abortion is lawful until 12 weeks of pregnancy, not ten weeks, as the previous text of the law indicated. The new bill also purports to make clear that it is not a violation of the law to help a pregnant person obtain a lawful abortion in another jurisdiction. As we have previously written about in this digest, although proponents of North Carolina’s 12-week ban have touted it as a moderate regulation, it contains many medically unnecessary provisions that restrict access to care, including stringent requirements for in-person visits with the performing physician. Litigation challenging the law will continue, but in the meantime, North Carolina has lost its status as a safe haven for reproductive rights in the South.
Indiana:
In Indiana, the state Supreme Court has issued a ruling clearing the way for the state's near-total abortion ban to go into effect. The Court’s ruling overturned a county judge’s previous determination that the ban likely violated the state constitution’s privacy protections. In their order, the justices found that the legislature has broad discretion to regulate the conditions under which abortion may be performed in the state.
Indiana’s new law is uniquely harsh. It bans abortion entirely, with only narrow exceptions for rape or incest until ten weeks post-fertilization, cases of lethal fetal anomaly, and circumstances where the mother’s life is at risk. It also contains a number of “TRAP” laws, such as requiring abortions to be done only in certain hospitals. It imposes harsh penalties on providers who are found to be in violation of the law, including up to six years in prison. The total ban has not yet gone into effect; however, the Supreme Court’s ruling paves the way for it to become operative law in the coming weeks. Further complicating the matter, an Indiana court in a separate case temporarily halted implementation of the ban in December for patients who say that the abortion ban violates their sincerely held religious beliefs, protected by the state’s religious freedom act. That injunction remains effective, despite the state Supreme Court’s ruling.
South Carolina:
On June 27, 2023, the all-male South Carolina Supreme Court heard oral arguments in the case challenging the state’s fetal heartbeat ban. As reported previously, the law was signed by Governor McMaster on May 25, and within 24 hours, Planned Parenthood filed a request for an injunction and a state court judge granted it, halting implementation of the law during the pendency of the litigation. In addition to challenging the law’s constitutionality, Planned Parenthood’s lawyers argue that the new law is functionally identical to the 6-week ban that the Court struck down as unconstitutional in January of this year. The state’s lawyers argued that the new law is substantively different in ways that cure the Court’s concerns with the previous 6-week ban, while Planned Parenthood maintained that, although some language may have changed, the effect of the law is the very same as before. During arguments, lawyers from both sides faced significant questioning, with a heavy emphasis on exactly how the law is meaningfully different and whether or not a ban on abortion after detection of fetal cardiac activity gives pregnant people enough time to discover the pregnancy and decide whether or not to continue it. The Court has not yet issued its ruling.
Ohio:
In Ohio, advocates have successfully obtained enough signatures to get a constitutional amendment protecting abortion in front of voters in November. This success is the latest in a hard-fought battle to get abortion onto the ballot. Previously, Republicans in the state unsuccessfully tried to argue that abortion is separate from other reproductive rights that the ballot measure addresses, and therefore proponents of the ballot measure must collect twice as many signatures as planned. That argument was struck down. Further, the state legislature has successfully called for an August special election to determine whether to raise the threshold needed to pass a constitutional amendment from a simple majority to 60%. This move is a blatant attempt to block the passage of abortion protections, and polling shows that Ohio's support for a constitutional amendment sits at about 59% currently. This kind of political maneuvering disempowers voters and weakens direct democracy, and it cannot go unchallenged.
What else is happening in access?
The Texas legislature has quietly passed a new bill that creates an affirmative defense to the state’s abortion ban for cases of ectopic pregnancy or preterm premature rupture of membranes (PPROM). This move likely comes in response to public outcry over the many stories coming out of the state detailing ways in which pregnant people’s medical care has suffered under the Texas law. The bill will take effect on September 1.
Republicans are quick to compare their proposed abortion bans to those found in Europe, making the case that the proposals are internationally mainstream; this piece does an excellent job of eviscerating that argument.
As we have reported on previously, Idaho has passed an abortion trafficking law, defining assisting a minor over state lines to obtain an abortion as “trafficking.” Legislation like this not only creates barriers to reproductive care but harms victims of actual human trafficking.
North Carolina has approved restrictions on gender-affirming care for minors; it is likely to override the anticipated veto by Democratic Governor Roy Cooper.
Advocates are beginning to turn the tide in the fight for trans rights, with many favorable rulings coming out of state courts. This is a reminder that this fight is winnable–we just need to fight.
In Kentucky, plaintiffs have dropped their lawsuit challenging the state’s abortion restrictions, based on the court’s requirement of a patient as a plaintiff; however, the plaintiffs indicate that they have not given up the fight.
In Georgia, parents of trans youth are fighting back against laws restricting access to gender-affirming care for minors.
Issue of the Week:
Where do Presidential Hopefuls Stand on the Question of a National Abortion Ban
As more and more Republicans officially throw their hat in the 2024 presidential ring, the possibility of a national abortion ban has emerged as a major talking point, with potential nominees eager to distinguish their positions on the issue. The idea of a federal abortion ban flies in the face of the “abortion should be returned to the states” argument that was previously embraced by pro-life advocates and enunciated by the Supreme Court in Dobbs. Of course, we know that the movement to restrict abortion was never actually about federalism, but it is still worth calling out the about-face done by much of the anti-choice movement in just one short year. The possibility of a national abortion ban may seem extreme and unlikely, but so too did the overturning of Roe–until it happened. If a Republican takes office in 2024 and the party establishes a majority in both houses of Congress, a national abortion ban all of a sudden becomes very possible, if not likely. So, let's take a look at where some of the top-polling candidates stand at this time:
Donald Trump: The former President has arguably done more to advance the pro-life movement than any other president. His nomination of three conservative justices to the Supreme Court paved the way for the overturning of Roe v. Wade. And, his many lower court appointments created a climate where anti-choice attacks, like the challenge to the FDA’s approval of mifepristone, can thrive. However, the former President has waffled on whether he would support a national abortion ban if re-elected. In April of this year, he faced backlash from a prominent pro-life group for stating that abortion should be left up to the states. However, he has also stated that he believes that there is a role for both the states and the federal government to play in “protecting unborn life,” seeming to leave the door open to the possibility. Regardless, we can be certain that another Trump presidency would mean 4 more years with an administration hostile to abortion and bodily autonomy rights.
Ron De Santis: Ron De Santis, the current governor of Florida has positioned himself as staunchly anti-abortion, signing into law a 6-week abortion ban in his own state. However, similar to Mr. Trump, he has not definitively taken a position on whether he would support the passage of a national ban, likely because that position is demonstrably unpopular amongst the American people. However, Governor De Santis, if elected, is certain to continue Donald Trump’s work of appointing extremely conservative judges opposed to abortion.
Mike Pence: Former Vice President Mike Pence has consistently reiterated his anti-abortion views. As a presidential candidate, he has stated that both himself and his campaign “stand without apology for the right to life.” He has been critical of President Biden’s pro-choice position and endorsed a 15-week federal ban, encouraging his fellow 2024 candidates to do the same.
Nikki Haley: Former South Carolina Governor Nikki Haley has stated that she would “absolutely” sign a 15-week national abortion ban if elected. The former governor has emphasized what she describes as the need for greater Republican consensus on the issue before a federal ban would be politically viable; however, she is clear on her anti-abortion stance, and if a proposed ban cleared Congress, she would support it.
Tim Scott: South Carolina senator Tim Scott initially waffled on his position on a national abortion ban; however, he has since made it clear that he would be in support of such a measure. In late June, the Republican senator published an opinion piece in the Des Moines Register in which he stated that he is 100% pro-life, would sign the most pro-life legislation that made it to his desk, and that we should start with a 15-week national abortion ban.
Vivek Ramaswamy: Entrepreneur Vivek Ramaswamy has described himself as “unapologetically pro-life.” However, he has declined to support a federal abortion ban, explaining his belief that if abortion is murder and murder laws are handled at the state-level, then abortion should also be a state issue. At the state level, he has signaled his support for 6-week abortion bans.
Chris Christie: Former New Jersey governor has described himself as pro-life; however, he has not come out in favor of a national abortion ban, instead stating that abortion should be decided by the states. It is worth nothing, however, that during Christie’s 2016 run for president, he did announce his support for a 20-week federal abortion ban. Christie has also expressed his view that there is no constitutional right to abortion, signaling that his would be an administration hostile to choice.
Doug Burgum: Doug Burgum’s tenure as Governor of North Dakota has made his stance on abortion unmistakably clear. In his own state, he signed a 6-week abortion ban into law, effectively outlawing the procedure. However, Governor Burgum has stated that he believes that abortion belongs with the states and, if elected, he would not sign a federal abortion ban.
Although there is still time before the 2024 election race ramps up in earnest, abortion is certain to continue to be a major talking point. A Republican president could signal disaster for reproductive and bodily autonomy rights. It is crucial that we stay informed and that, when the time comes, we get out and vote. Our rights depend on it.