Developments in Abortion, Autonomy, and Access:
In this week’s Digest, we have broken down our reporting by category, covering all of the federal, state and local legislation, litigation, policy, and ballot initiative news that you need to know. As always, we strive to make this Digest the most effective and efficient resource that it can be, and we welcome any feedback from our readers.
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This Week’s Must Read:
This week’s must read takes a critical look at the potential reach of fetal personhood laws–laws that seek to grant an embryo or fetus full legal rights–and the anti-abortion movement’s strategy to weaponize them against reproductive rights. In addition to nullifying abortion rights, fetal personhood laws would place the personhood of the pregnant person in direct conflict with that of the fetus and produce a whole host of legal and practical absurdities and harms. If a case over the constitutionality of fetal personhood laws ends up before the current Supreme Court, the Court could issue a ruling that casts a national shadow on all aspects of reproductive health care.
Legislation & Litigation:
Montana and Minors’ Access to Abortion: On Wednesday, the Montana supreme court ruled that minors’ fundamental right to privacy, including autonomy over their own medical decisions, renders parental consent requirements for abortion unconstitutional. The decision was unanimous and comes at a time when parental rights have been wielded as an argument against the right of minors to obtain health care. The full opinion is available here.
Idaho and EMTALA: Following the U.S. Supreme Court’s dismissal of Moyle v. United States as improvidently granted, the Ninth Circuit Court of Appeals has set oral argument in the case for the week of December 9th, 2024. In this case, the Biden Administration argues that Idaho’s total abortion ban, which only includes an exception for the life of the pregnant person, is preempted to the extent it conflicts with the Emergency Medical Treatment and Active Labor Act’s (EMTALA) broader federal obligation to provide stabilizing care to preserve a patient's life and health. The Supreme Court’s dismissal allowed the Ninth Circuit’s previous injunction on the law to go back into place, temporarily granting Idahoan patients access to emergency care. The court will now receive briefing and oral arguments that will determine the future of emergency healthcare for pregnant people in the state. How the court rules will set a critical example for other states, like Texas, that are litigating over the question of whether states’ abortion bans supersede federal emergency health care provisions. The case is all but certain to end up back before the U.S. Supreme Court in the coming years.
Texas and Emergency Healthcare: Two Texas women have filed complaints against Texas hospitals in federal court, after being denied treatment for their ectopic pregnancies, resulting in the loss of their fallopian tubes. The complaints are brought pursuant to EMTALA. Although Texas is currently enforcing a total abortion ban, the law allows for the termination of ectopic pregnancies; however, providers and hospitals have been hesitant to provide even legal care out of fear of civil and criminal liability. In states with severe abortion bans in place, the futility of exceptions is clear. Stories of pregnant people being turned away in emergency circumstances, having to be airlifted out of state, or not being able to access care under rape or incest exceptions have been ceaseless. This new case comes on the heels of a similar lawsuit brought by Mylissa Farmer against the University of Kansas Health System, after the hospital failed to provide her with emergency treatment in the midst of a severe pregnancy complication.
Oklahoma and Title X: Oklahoma is asking the U.S. Supreme Court to step in in a dispute over Title X funding and abortion referrals. The Department of Health and Human Services is enforcing a requirement that states receiving Title X family planning grants must offer a call-in number to a family planning hotline that includes information about abortion. However, citing Dobbs and anti-discrimination law, Oklahoma argues that this requirement amounts to discrimination against entities that do not provide abortions. Previously, the 10th Circuit Court of Appeals found that HHS had the authority to enforce its requirement, reasoning that merely providing a phone number for a hotline that includes information about abortion, among other family planning options, does not amount to mandating abortion referrals.
Illinois: Illinois Governor JB Pritzker has signed 3 new abortion-protective bills into law, continuing the state’s role as a bastion of access in the region. The first bill, HB 581, grants the Illinois Department of Public Health authority to investigate hospitals for EMTALA violations. HB 4867 extends state anti-discrimination protections under the Illinois Human Rights Act to people for their reproductive health decision, including abortion. The third bill, HB 5239 strengthens the state’s existing shield law by prohibiting state and local jurisdictions from disclosing information or utilizing resources to assist in out-of-state investigations into legal reproductive healthcare. The new protections come weeks after neighboring state Iowa began enforcing its ban on abortion after detection of fetal cardiac activity and in anticipation of a potential republican presidency that could hamstring abortion rights nationwide.
California and Abortion Pill Reversal: A San Diego Catholic nonprofit has filed a federal lawsuit against California Attorney General Rob Bonta seeking to block his efforts to crack down on crisis pregnancy center misinformation. The group argues that AG Bonta’s activities suppress their First Amendment rights. Abortion pill reversal (APR) is not FDA approved and major medical associations including the American College of Obstetricians and Gynecologists do not support the practice based on the lack of evidence demonstrating its safety and efficacy.
Ohio and Gender Affirming Care: An Ohio County judge has ruled that the state’s ban on gender affirming care for minors under the age of 18 can go into effect. The devastating ruling is causing families of trans minors to consider leaving the state in order for their children to continue to access life-saving care. Over half of U.S. states have now banned or limited access to gender affirming care for minors.
Ballot Initiatives:
Missouri: Missourians will have the opportunity to vote directly on abortion rights in November, making it the eighth state to put abortion on the ballot this year. If passed, the amendment would protect the right to abortion “pre-viability” (around 24-weeks gestational age), with exceptions for the life or health of the pregnant person at any point in pregnancy. At present abortion is completely banned in Missouri. For more insight into the impact of Missouri’s abortion ban, you can read Missouri ob-gyn Dr. Iman Alsaden’s discussion of the public health repercussions of limiting access to reproductive health care.
Arizona: Despite ongoing litigation attempting to block Arizona’s abortion rights ballot initiative, it appears that the measure will appear before voters in November. On Monday, Arizona’s Secretary of State certified the signature count, which Arizona for Abortion Access reports is the highest signature count ever recorded for a citizen initiative in the state’s history. If passed, the amendment would extend abortion protections from the current 15 weeks to around 24 weeks, with exceptions. Although advocates are optimistic about the initiative’s likelihood of success, Arizona Right to Life continues to attempt to block it. The group is asking the state Supreme Court to find that the legally required initiative summary misled petition signers, re-urging arguments that were already rejected by a Maricopa County Superior Court judge. Anti-abortion activists were handed a small win by the state’s supreme court this week, with the court finding that the use of the phrase “unborn human being,” rather than the scientifically accurate “fetus,” can be used in the pamphlet that voters will see.
South Dakota: Although it appears likely that South Dakotans will see abortion on the ballot in November, Life Defense Fund, an anti-abortion group, is continuing its litigation efforts to stop the measure from being put to a vote. The case was previously dismissed, but the group has now added Secretary of State Monae Johnson as a defendant and renewed their lawsuit, arguing that Dakotans for Health failed to comply with applicable laws in circulating its petition. The litigation is unlikely to be resolved prior to the deadline for the secretary of state to certify ballot questions to county auditors, but Life Defense Fund argues that even if the amendment makes it onto the ballot, the secretary of state’s office could refuse to count any votes towards it. Dakotans for Health has decried the efforts as “another in a series of desperate measures” to silence voters’ voices on the amendment. South Dakota is currently under a total abortion ban; if passed, the amendment would effectively codify the Roe trimester framework.
Trend & Policy Watch:
Abortion Bans and HIPAA: Experts warn about the lack of privacy protections for patient information at crisis pregnancy centers (CPCs). Although these centers often misleadingly imply that they are bound by HIPAA and may offer some semi-medical services, such as pregnancy testing or free ultrasounds, the vast majority of them are not bound by patient privacy laws. Patients need to be aware that these centers may be collecting and sharing data that could aid in pregnancy and abortion investigation and criminalization. Data collection and sharing is particularly concerning in the present legal environment, as several states are seeking to ban interstate travel for abortion care and crack down on those who self-manage abortion within their own state.
Florida: The impact of Florida starting to enforce its 6-week abortion ban has been devastating, not just for Floridians, but for patients all over the country who lost a critical access point. Data from the National Abortion Federation shows that calls for help with traveling out of state have increased 575% in the 2 months since the ban went into effect. Brittany Fonteno, CEO of NAF described the aftermath as “devastation and chaos.”
Self-Managed Abortion: A new study from Advancing New Standards in Reproductive Health (ANSIRH) shows continuation in the trend of more pregnant people self-managing their abortions. As more and more states restrict access to abortion, the cost and time burdens for accessing care are rising, forcing pregnant people to travel long distances, navigate multiple legal landscapes, take time off work, find child care, and expend significant financial resources. Self-managed abortion, which typically involves taking mifepristone and/or misoprostol outside of a clinical setting, allows pregnant people to undergo their abortions at home with the safety net of their support systems around them. While all people should have access to safe and equitable health care, data shows that mifepristone and misoprostol are both safe and reliable methods for ending a pregnancy at home in its early stages.
Amnesty International Finds Abortion Bans Violate Human Rights: A new report from Amnesty International details how the post-Dobbs legal landscape in the U.S. has created a human rights crisis in violation of international law. The report highlights the stories of impacted individuals and outlines how preventing access to abortion harms the health, wellbeing and autonomy of pregnant people, particularly those in already marginalized communities. The report calls on the U.S. to restore and protect the right to abortion and ensure that health care is accessible by all on equal terms and without discrimination.
Iowa’s Maternal Health Care Crisis: As Iowa begins to enforce its ban on abortion after detection of fetal cardiac activity (around 6-weeks gestational age), the state will be forced to contend with its worsening maternal health care crisis. Iowa has the lowest per capita ratio of ob-gyn providers to patients of any state in the country, and over 1/3 of the state’s counties are considered maternity care deserts. The lack of providers will inevitably worsen with the ban in place, as the past two years have demonstrated a measurable trend of medical students and residents gravitating away from states with abortion bans in place and providers choosing or being forced to leave to practice elsewhere.