Developments in Abortion, Autonomy, and Access: 

In the past two weeks, the Fifth Circuit’s ruling in the mifepristone case dropped, Ohio held its vote on Issue 1, and litigation and legislation around the country saw movement in both positive and negative directions. Please read on for more information. 

Legal Changes at the State Level: 

• Brief Overview: 

• AHM v. FDA (mifepristone): The Fifth Circuit has ruled in Alliance for Hippocratic Medicine v. FDA, the case challenging the FDA’s 2000 approval of mifepristone for use in medication abortion. The conservative 3-judge panel’s Opinion upheld restrictions on access to the drug, but declined to pull it from the market entirely. Please note: Despite this ruling, there will be no changes to the drug’s availability during the pendency of the litigation, as a result of a previously issued Supreme Court Order. 
  

• Ohio: In Ohio, the Issue 1 vote to raise the threshold for a constitutional amendment from a simple majority to 60% has failed. This has huge implications for the proposed constitutional amendment to protect abortion that will appear on the November ballot. 

• Idaho: Educators in Idaho have filed a lawsuit challenging the state’s “No Public Funds for Abortion Act” as a violation of their First and Fourteenth Amendment rights. 

• Nebraska: In Nebraska, a judge has ruled in favor of the state’s combined 12-week abortion ban and gender affirming care ban. 

Legal Analysis: 

• AHM v. FDA (mifepristone): 

• On Wednesday afternoon, the Fifth Circuit issued its much anticipated Opinion in Alliance for Hippocratic Medicine v. FDA. In the 93 page order, the 3-judge panel ruled to restrict access to the drug, but declined to pull it from the market entirely. As a reminder, this case was brought by anti-abortion physicians and physician groups challenging the FDA’s 2000 approval of mifepristone for use in medication abortions. Relying on scientifically dubious studies, the Plaintiffs argue that mifepristone is not sufficiently safe and that the FDA erred in approving the drug in 2000 and later modifying its regulations for use in ways that increased access. In April, Trump-appointee Judge Matthew Kascmaryk sided with the Plaintiffs and ordered the pill to be removed from the market; however, the Supreme Court issued an order in April blocking Judge Kascmaryk’s ruling from going into effect until the litigation reaches its final conclusion. Wednesday’s Order reverses Judge Kascmaryk’s ruling on the FDA’s 2000 approval of mifepristone, finding that the Plaintiffs are outside of the statute of limitations. But, it maintained restrictions on the drug’s use, including limiting its use to 7 weeks (though it is currently approved through 10-weeks), and requiring it to be prescribed in person, rather than allowing for  telemedicine. The Fifth Circuit’s opinion is out of step with major health organizations worldwide, which approve of the safety of telemedicine for prescribing mifepristone. If the ruling holds, it would devastate clinic capacity and patient access to care, as overwhelmed clinics rely heavily on the availability of telemedicine to serve the surge of patients traveling from ban states to receive care. The Court’s finding that the Plaintiffs have standing to bring their challenge is also a stunning departure from accepted standing jurisprudence and could have precedential consequences in countless other cases. The panel found that the doctor’s have standing to challenge the FDA’s approval of mifepristone, because they may someday have to participate in abortion care if a patient who took mifepristone presents in their E.R. or clinic–despite the fact that federal law protects the doctors’ right to assert conscience objections in circumstances where providing certain care is against their moral beliefs. In his concurring opinion, Judge Ho suggested that, in addition to the injuries asserted, the plaintiff’s also have an “aesthetic injury.” Judge Ho analogized this case to cases involving wildlife preservation and offered the following reasoning: 

"its well established that, if a plaintiff has ‘concrete plans’ to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal ....[u]nborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and families cheer at the sight of an unborn child. Doctors delight in working with their unborn patients--and experience an aesthetic injury when they are aborted."

The case is all but guaranteed to make its way back up to the Supreme Court, although when the Court would take up the case, and on what question, is uncertain. Crucially, access to mifepristone remains unchanged at this time, as a result of the Supreme Court’s April Order.  

• Ohio:

• In other much-anticipated news,  Ohio Issue 1, the special election issue to determine whether to raise the threshold to pass a constitutional amendment from a simple majority to 60% has failed. This has huge potential implications for abortion in the state, as a ballot initiative protecting certain abortions will be directly before voters in November. The success or failure of the Ohio ballot initiative will serve as a model for advocates on both sides of the abortion fight in other states around the country.

If the proposed amendment passes, it would effectively codify the Roe standard in Ohio by providing a fundamental right to abortion pre-viability and allowing the state to enact restrictions post-viability. Although the outcome of the November election is far from a foregone conclusion, reproductive rights have succeeded all six times that they appeared on a state ballot in 2022. 

• Idaho: 

• Educators in Idaho have filed a federal lawsuit challenging the state’s “No Public Funds for Abortion Act” (NPFAA) as a violation of their First and Fourteenth Amendment rights. The NPFAA prohibits the use of public funds, including those used to fund Idaho public universities, to “promote” or “counsel in favor” of abortion. In their Complaint, six Idaho professors and two teachers’ unions argue that the law, which does not provide a definition for “promote'' or “counsel in favor of” is unconstitutionally vague and criminalizes academic speech that could be construed as expressing a viewpoint favorable to reproductive rights. The Plaintiffs argue that they are forced to either alter their lesson plans, or risk the state enforcing the NPFAA against them, with prison time up to 14 years as a potential consequence. In the complaint, the plaintiffs describe the chilling effect that the law has already had on free academic discourse. For example, a philosophy professor has stripped a module about human reproduction from the curriculum, because it would typically include materials presenting viewpoints on both sides of the abortion issue and could lead to a classroom discussion about the merits of reproductive freedom. A political science professor ceased giving a lecture about public opinion on abortion across the states for fear that it could run afoul of the law. Another professor scrubbed reference to their research on reproductive freedom from their online profile. The Complaint details several other concrete examples of how the law is impacting academic freedom. The state has issued no guidance or reassurance on how the law would be applied to academics. The NPFAA’s potential application to academic discussion underscores how the fight for bodily autonomy is inextricably linked to the fight for a free and open society. We cannot have one without the other.  

• Nebraska: 

• In a Nebraska lawsuit, a judge has ruled in favor of the state’s combined 12-week abortion ban and ban on gender affirming care for minors. As we have previously reported on, after failing to enact other abortion bans, the Nebraska legislature tacked a 12-week abortion ban onto a preexisting bill banning gender affirming care for minors. The combined law was pushed through at the last second in the state’s 2023 legislative session. Planned Parenthood and the ACLU challenged the law, arguing that it violated the state constitutional requirement that bills only contain one subject. The Court sided with the state, finding that the subjects were appropriately contained in one bill, because they both relate to health. Planned Parenthood and the ACLU have indicated their intent to appeal the order; however, for the time being, Nebraska’s law remains effective and abortion is severely limited in the state. 

More News in Access: 

• A Texas prison guard who experienced a stillbirth after being forced to stay at her post while 7-months pregnant and experiencing labor pains is suing the state of Texas. Texas is fighting the suit, arguing in part that her fetus did not have personhood rights. This is a significant departure from Texas’s decades-long insistence that a fetus should be recognized as a person from the time of fertilization. 

• Maine recently amended its abortion law to grant providers greater discretion in using their medical judgment to determine when an abortion is necessary. Opponents of this move will not attempt to nullify it via a constitutional referendum. 

• Arizona abortion advocates have begun a push for a 2024 ballot initiative that, if successful, would put the question of whether to constitutionally protect abortion directly before voters next year. 

• An anti-choice student group, Students for Life of America,  continues to challenge mifepristone access under the Clean Water Act, circulating a petition that calls for an assessment of the drug’s impact on the country’s recreational water sources. SFLA President Kristan Hawkins stated the following in support of SFLA’s position: “[t]oday, more than half of all abortions–says the abortion industry–are committed with pills, meaning that all of that tissue and human remains goes into our water supply[;] [s]ome ingredients of the pill in the Chemical Abortion Pill protocol continue to be active after leaving a woman’s body. What is that doing to fish, animals, endangered species, plans and even human beings?” 

• In Georgia, supportive parents are fighting to block the state’s ban on gender affirming care for minors, arguing that the law is unconstitutional and supersedes their ability to make medical decisions on behalf of their children. 

• In Idaho, a federal judge has temporarily blocked legislation requiring public school students to use the bathroom that corresponds with the sex they were assigned at birth. 

• Texas is seeking more than $1.8 billion in reimbursements from Planned Parenthood. The lawsuit moved forward this week with a hearing in front of Judge Matthew Kascmaryk, the judge who ruled against the FDA’s approval of mifepristone earlier this year. 

• In Montana, the Attorney General made comments during an interview suggesting that Planned Parenthood has covered up instances of human trafficking.

• North Carolina lawmakers have voted to override Governor Roy Cooper’s veto on the state’s ban on gender affirming care, allowing the ban to pass into law. 

Issue of the Week: State Constitutional Amendments 

This week’s “Issue of the Week” is a continuation of our series focusing on the different strategies being used to protect reproductive freedom. This week’s installment has been guest written by L4GG intern Kieran Malik. 

It has been barely a year since the Supreme Court’s decision in Dobbs, and our country is facing a landscape more hostile to reproductive healthcare than we have seen in decades. This is a time of profound crisis for millions of Americans, but it also offers an opportunity for us to reimagine reproductive rights law and create something far more protective, comprehensive, equitable and lasting than Roe ever was. 

There are a variety of state-level legal strategies being pioneered in defense of reproductive freedom. One of these is the enshrining of  reproductive rights into state constitutions. Below are some examples of how this tactic is being employed by activists across the country and how it can be effective:

  

ERA approach: 

Originally passed by Congress in 1972, the Equal Rights Amendment (“ERA”) was an attempt to establish sex equality under the law in the US Constitution. While opponents of the women’s liberation movement prevented the amendment from being ratified by the states before the deadline, reproductive rights activists are reviving the ERA as a strategy for protecting bodily autonomy at the state-by-state level. State level ERA’s can provide a legal hook for arguments that abortion is constitutionally protected. A lawsuit filed by a reproductive health center in Pennsylvania argues that the state’s failure to provide Medicaid coverage of abortion is a form of sex discrimination that violates the state’s equal rights amendment. If successful, the suit will serve as an example for the defense of bodily autonomy in as many as 24 states with ERAs. This past January, the New York legislature passed an equal rights amendment that will appear on the ballot for ratification in November 2024. The ERA broadly defines sex discrimination as encompassing “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy” – explicitly protecting both reproductive rights and trans rights as an integral part of sexual equality. 

Reproductive Rights Amendments: 

After the devastating decision in Dobbs, many states are going a step further and working to establish constitutional amendments directly and explicitly protecting reproductive rights alone . These protections tend to be more comprehensive than those provided under pre-Dobbs law. For example, in 2022, Vermont and California passed ballot measures protecting abortion without any reference to viability, a limit to reproductive freedom imposed under Roe. As discussed in the last digest, although state legislatures commonly refer to viability and define it as a fixed moment in fetal development, medical professionals assert that fetal viability is a complex concept that cannot be determined by gestational age alone. The American College of Obstetricians and Gynecologists “strongly discourages the use of viability in legislation or regulation.” A state-by-state approach to reproductive freedom legislation provides an avenue to avoid such misuse of medical concepts by politicians at the federal level. 

However, in other states it has proven more difficult to defeat the ideological warping of medicine in the law. Michigan’s 2022 constitutional amendment and Florida’s proposed amendment for 2024 only protect the right to abortion before viability (Florida’s law clarifies that such an amendment would not threaten parental notification). While legislation that makes such concessions can provide much-needed healthcare rights to millions of Americans, they fall short of achieving true reproductive freedom. When dealing with law as powerful and lasting as state constitutional amendments, we must be sure that it provides access to all people who need it, and that it lays a proper foundation for future policies.  

Expanding Access, Not Just Rights: 

Roe may have provided temporary and limited protection from infringement upon one’s bodily autonomy, but it failed to engage with or create the resources necessary to ensure equity in reproductive healthcare access. The Hyde Amendment still prevents Medicaid coverage for abortion in many states, leaving the most disadvantaged Americans without access the full range of their reproductive choices. In the fight for new legal protections, we have the opportunity to not just defend reproductive healthcare access, but to expand it and reimagine what reproductive freedom looks like. For example, in May, Rhode Island passed the Equality in Abortion Coverage Act, which provides abortion coverage under Medicaid and state insurance. It joins 16 states that have rejected the Hyde Amendment in order to provide reproductive healthcare for all their citizens. 

Protect Our Future: 

This June, the Supreme Court ruled in Moore v. Harper that powers granted to the states by the federal government must be exercised in accordance with state supreme court decisions and constitutions. As such, a state-by-state constitutional amendment strategy can be an incredibly powerful defense of reproductive rights. When written comprehensively, these amendments can protect our rights now and provide a powerful defense against any future state-level attacks that may be leveled against them.

As early as November, Americans across the country will have the opportunity to enshrine reproductive rights in their state constitutions. These amendments have the potential to significantly strengthen existing protections, or reverse devastating restrictions on reproductive healthcare. But more than that, they have the power – we have the power – to expand reproductive healthcare access more than ever before, and protect our bodily autonomy for generations to come.