Developments in Abortion, Autonomy, and Access: 

This week’s Digest discusses the implementation of Iowa’s 6-week abortion ban, a ruling out of Nebraska that impacts both abortion rights and gender-affirming care, updates on ballot initiative battles across the country, and much more. Please read on to the end for the 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: 

• Iowa: Iowa’s near-total abortion ban took effect on Monday, July 29th, banning abortion at six weeks, before most Iowans will even know they are pregnant. Although there are narrow exceptions to the law to preserve the life of the pregnant person or in some cases of rape, incest or fatal fetal abnormalities, the reality is that the vast majority of patients will now be forced to leave the state to obtain care.

• Nebraska and Single-Subject Rule: The Nebraska Supreme Court has issued a ruling upholding the state’s law that combines a 12-week abortion ban and prohibition on gender-affirming care for individuals under 19 years old, saying the law did not violate the single-subject rule because both were forms of health care.

• The Ninth Circuit Court of Appeals and Mifepristone Access: The Ninth Circuit Court of Appeals has declined a group of 7 GOP-led states’ request to intervene in a case involving access to the abortion pill mifepristone,

Legal Analysis:

• Iowa:

  • Iowa started enforcing its 6-week abortion ban on Monday, July 29th. The law bans abortion with narrow exceptions after detection of a “fetal heartbeat”–a medically inaccurate term for the electrical impulses that can be heard via ultrasound very early in pregnancy prior to the chambers of the fetal heart actually forming. These electrical signals typically become detectable around 6 weeks gestational age, a point in pregnancy before many people are even aware that they are pregnant. Previously, abortion in Iowa was permitted until 20 weeks. 

  • The fetal heartbeat law was originally passed in 2023 and briefly went into effect prior to the ACLU challenging it, and a district court blocking its enforcement during litigation. However, the Iowa Supreme Court determined, using rational basis review, that the law met constitutional muster and could once again take effect. The ban includes narrow exceptions for vaguely defined medical emergencies, and, if the fetus is less than 20 weeks post-fertilization, for cases of rape or incest when reported to law enforcement, or for fetal abnormalities incompatible with life. Of course, in practice these exceptions will do little to meaningfully expand patients’ access to necessary care. And, they impose cruel non-medical requirements that take decisional autonomy for when and how to report a crime away from victims of rape or incest who require abortion care. 

  • With Iowa losing abortion access, other states are  preparing to take on an influx of new patients. Patients’ closest in-person access points will now be Illinois and Minnesota, both of which have protective abortion laws in place. For individuals less than 12 weeks along, they may also be able to access care in Nebraska. Iowa is now the fourth state to impose a 6-week abortion ban, joining the ranks of Florida, South Carolina and Georgia.

• Nebraska and Single Subject Rule:

  • The Nebraska Supreme Court issued a decision last Friday finding that the state legislature did not act improperly in combining a ban on gender-affirming care for individuals under 19 with a 12-week abortion ban. The law in question, LB 574, was originally introduced as a ban on gender-affirming care; however, after the state legislature failed to pass a 6-week abortion ban, it amended the gender affirming care law to also include a 12-week abortion ban. This allowed the state to restrict abortion access despite the legislative hurdles faced by the 6-week ban. 

  • Planned Parenthood, represented by the ACLU, brought a lawsuit challenging LB 574 as a violation of the single subject rule, a Nebraska constitutional requirement that a bill only contain one subject. The groups argued that gender-affirming care restrictions and abortion restrictions lack the necessary similarity to be appropriately addressed in one bill. They also argued that the two bills were combined in order to secure enough votes for passage, when the issues would have failed separately. However, the court disagreed, finding that the bill’s contents fell under the title of “public health and welfare” and were sufficiently connected to proceed under one piece of legislation. 

  • In November, Nebraskans will likely have the opportunity to vote directly on the issue of abortion, as advocates work to get it onto the ballot. The ballot  measure  proposed by Protect Our Rights would restore abortion rights until fetal viability, with exceptions for the life or health of the pregnant person after that point.

• Ninth Circuit and Mifepristone Access:

  • The Ninth Circuit Court of Appeals, the appellate court over much of the western United States, including Washington, has declined a group of 7 GOP-led states’ requests to intervene in a case about access to mifepristone. This ruling comes after the U.S. Supreme Court threw out Alliance for Hippocratic Medicine’s challenge to the FDA’s approval of mifepristone on standing grounds. 

  • Last February, in direct contrast to Alliance for Hippocratic Medicine’s case, 10 states led by Washington brought a lawsuit alleging that the federal government has imposed unduly harsh restrictions on use of mifepristone that are not justified by the drug’s stellar safety record. Idaho then led a group of conservative states in moving to intervene in that lawsuit. The states argued that they would be harmed in myriad ways by the elimination of in-person dispensing requirements for the drug. After a district court ruled against Idaho’s coalition, the states appealed up to the Ninth Circuit. 

  • The Ninth Circuit panel’s decision found that the states lacked standing because the connection between FDA’s actions and any alleged harm incurred by the states was too attenuated and relied on the independent actions of other actors, including doctors and patients. The Court also found that to allow the states to intervene would effectively grant any state the right to intervene in any lawsuit related to FDA regulation of a drug. Judge Matthew Kacsmaryk, out of the Northern District of Texas, came to the opposite conclusion in the states’ request to intervene in the Alliance for Hippocratic Medicine v. FDA case, opening the door for the states to attempt to revive the litigation that the Supreme Court recently rejected on standing grounds. Because SCOTUS did not rule on the merits of the case, new litigants will try to once again challenge the FDA’s approval of the drug, asserting refreshed standing arguments to support their claims. 

More News in Access:

• Utah: The Utah Supreme Court ruled today to uphold an injunction on the state’s 2020 trigger ban, which would functionally ban all abortion in the state. The ban has been on hold while litigation challenging it plays out, with the lower court judge finding that the risk of harm to patients is too high to allow the law to take effect prior to resolution of the question of its constitutionality. 

• Arizona: A Maricopa County Judge has ruled that the phrase “unborn human being” cannot be used in the voter information packet for the ballot initiative seeking to enshrine pre-viability abortion rights into the state’s constitution. Arizona for Abortion Access successfully argued that the wording violated the state’s requirement that the language must be “impartial,” with Judge Whitten finding that the phrase “unborn human being” was partisan and must be replaced with politically neutral language. The decision is all but certain to be appealed.  

• Montana: Montana county-level election officials have verified that advocates submitted enough signatures to advance an abortion rights ballot initiative to the voters in November. Recently, Montana advocates faced resistance from the Montana Secretary of State, who announced that the votes of so-called “inactive” voters should not count towards the total. However a state district judge blocked enforcement of that newly announced rule, citing the need to broadly interpret citizens’ constitutional right to participate in direct democracy. 

• New Hampshire: New Hampshire Governor Chris Sununu signed anti-trans legislation banning transgender girls from playing on the girl’s sports teams at their schools. The schools are required to look at students’ birth certificates to determine eligibility for participation on certain teams. 

• Kansas: In Kansas, providers are temporarily relieved from compliance with a law requiring them to ask their patients invasive questions about why they are seeking an abortion. If enforced, the law would require providers to inquire into their patients’ reasons for seeking care, including, among other things, whether it was because of career or school plans, financial reasons, or not wanting a disabled child. Questions like these are obviously divorced from any medical necessity–instead, they allow the state to gather data on private decision making and stigmatize patients who may not otherwise have chosen to disclose their reasoning. 

• Kansas: Kansas woman Mylissa Farmer has sued the University of Kansas Health System for its failure to provide her with emergency care, as it is legally obligated to under the Emergency Medical Treatment and Active Labor Act (EMTALA). This case comes after the Supreme Court failed to definitively rule on the question of whether state abortion bans can override federal EMTALA obligations. 

• Arkansas: In Arkansas, advocates continue to battle over whether they have submitted sufficient signatures to support their abortion-protective ballot initiative. Arkansas Secretary of State John Thurston rejected the proposed ballot initiative, asserting that  Arkansans for Limited Government failed to comply with technical requirements for a ballot initiative. The group is challenging that rejection in court. Although the Arkansas Attorney General asked the court to dismiss the case, the court has not yet issued a ruling on that request, instead ordering the state to begin counting signatures. If the court agrees with the Attorney General’s argument and declines to include signatures collected by paid canvassers in the final count, the amendment will have fallen short of the threshold needed to go before voters in the fall. 

• Florida: The Florida Supreme Court has indicated that it will move quickly on two cases involving the financial impact statement attached to a proposed abortion rights ballot initiative. The conflict revolves around the initial financial statement, which became outdated when the state supreme court ruled on Florida’s 6-week abortion, and the subsequent revised statement, which Floridians Protecting Freedom alleges is politicized and inaccurate. 

• North Carolina: North Carolina Judge Catherine Eagles has issued another decision on the state’s abortion ban, ruling that the requirement that the location of a pregnancy be documented prior to prescribing abortion pills should be permanently blocked. Judge Eagles simultaneously restored a previously blocked provision of the law that requires all abortions after 12 weeks gestational age to take place in the hospital. 

• Amarillo: Voters in Amarillo, Texas will decide in November whether to make theirs the next “sanctuary city for the unborn,” prohibiting people from helping others to travel through Amarillo to access abortion care and making it illegal to possess abortion pills within the city. Although Texas is already enforcing a total abortion ban, several localities have enacted these local bans. Their enforceability is uncertain; however, the chilling effect that they have on citizens’ freedom of choice and movement is ultimately the point. 

• Title X and Birth Control: Texas Attorney General Ken Paxton has sued the Biden Administration over Title X rules requiring certain healthcare entities to provide contraception to minors without the need for parental consent. Paxton argues that this rule is in violation of a Fifth Circuit ruling in a case originally heard and ruled on by Judge Matthew Kacsmaryk. Cases like this are emblematic of the concerns raised by reproductive justice advocates about looming threats to contraception access, fertility treatments and other forms of reproductive healthcare. 

• Title IX and LGBTQ+ Rights: The Biden Administration’s Title IX rule extending anti-discrimination protections to LGBTQ+ students has been blocked  by the 11th Circuit Court of Appeals. The 11th Circuit’s ruling overturns a district court’s ruling finding that the GOP-led states were unlikely to succeed in showing that the Administration’s rule was unreasonable or unjustified. The rule’s protections are now blocked in over half of U.S. states. 

• Abortion Storytelling: A Wisconsin woman is opening up about her experience with abortion and how it changed her perspective and political views on the topic. Storytelling is a critical part of the movement for reproductive freedom, humanizing the issue and centering the voices of those with lived experience. 

• Vice President Kamala Harris on Abortion: As the Biden Administration’s top voice on reproductive rights, Vice President Harris’s move into the presidential race as the presumptive democratic nominee marks a moment where the national conversation around the future of abortion rights could see a significant shift. This is particularly true as leading conservative voices continue to disagree about the proper role of the federal government in abortion rights. 

• The Supreme Court and Chevron Deference: The Supreme Court’s decision this year overruling Chevron Deference opened the door for courts to second guess expert agency judgment in all areas, including healthcare. Experts are weighing in on the current and potential future consequences of that landmark decision. An abortion hostile federal administration could weaponize the overturn of Chevron to direct executive agencies to limit access to abortion and marginalize the rights of pregnant people.