*Note: An urgent update was also sent on August 7th due to important developments in abortion law that came out of Illinois and Texas. This update is here:

Illinois: 

• As we reported in last week’s digest, Illinois recently passed legislation expanding its existing consumer fraud protections to allow civil actions against Crisis Pregnancy Centers (CPCs) that are found to have engaged in deceptive and dishonest business practices. The new law was immediately challenged on First Amendment grounds by anti-choice groups claiming that it discriminates against their pro-life viewpoint. Late on Thursday, August 3rd, a Trump-appointed federal judge issued an oral order granting a preliminary injunction temporarily blocking the new law from taking effect. Illinois Governor JB Pritzker defended the law on Friday, stating “I’m confident this is constitutional. It's legal. Remember what they're doing. They're putting their crisis pregnancy centers next door to abortion rights centers, and they're directing people to go in their front door or telling them things that aren't true, often.” 
  

Texas: 

• A Texas state district judge issued a ruling on Friday, August 4th, temporarily enjoining enforcement of the state’s total abortion ban in cases where physicians used their “good faith judgment” to end a pregnancy because of serious complications or risk to the pregnant person. The case was brought by a group of women who were denied abortions despite serious risks to their health or diagnoses that their pregnancies were no longer viable, and it is believed to be the first case brought directly by patients denied abortion care. The Texas Attorney General’s office immediately filed an appeal against the ruling, blocking it from taking effect. The outcome of this litigation will inform strategies used in other cases that seek to challenge harsh and poorly written abortion bans across the country.

8/4 - Developments in Abortion, Autonomy, and Access: 

The legal landscape for abortion and bodily autonomy continues to change rapidly from week to week as litigation unfolds, legislatures debate and advocates organize to push back. Please read on for a discussion of the latest updates:

Legal Changes at the State Level: 

• Brief Overview: 

• Indiana: Indiana’s total abortion ban was set to go into effect on Tuesday, August 1st. However, the ACLU filed a petition with the state supreme court late Monday evening, asking the court to keep the ban on hold while it considers challenges to law. Although this move has temporarily delayed implementation of the ban, it seems that all Indiana abortion clinics have ceased offering abortion care in the interim.

• Maine: Maine passed changes to the state’s abortion law that expand access to care and place greater medical decision making authority in the hands of providers.

• Alabama: A group of Alabama health care providers have filed suit in federal court in response to Alabama Attorney General Steve Marshall’s threats to prosecute individuals who assist pregnant people over state lines to obtain legal abortions. This lawsuit comes on the heels of a similar interstate travel-based challenge in Idaho, to that state’s “abortion trafficking” law.

• Ohio: As we have reported on in previous issues of this digest, Ohioans are fighting to get abortion protections on the state’s November ballot. Last week, the Ohio Secretary of State certified that advocates have obtained enough valid signatures for the ballot initiative to move forward, taking them one step closer to a vote. However, Ohio Republicans continue to attempt to block the ballot measure–this time with a new lawsuit challenging its compliance with statutory requirements. 

• Illinois: Illinois has joined other states in passing legislation aimed at deterring “crisis pregnancy centers” from engaging in deceptive and misleading practices. The Illinois law is being challenged on First Amendment grounds by groups advocating for the value of CPCs. 
  
  

Deeper Legal Analysis 

• Indiana: 

  • Indiana’s total abortion ban was set to go into effect on Tuesday, August 1st. However, late Monday evening, the ACLU filed a petition with the state supreme court, asking it to keep the law on hold while it pursues a narrower preliminary injunction at the trial court level. This move has temporarily delayed implementation of the ban, while the court considers the filing. However, Indiana’s six abortion clinics have all ceased offering abortion services in anticipation of the ban becoming operative,, devastating access for pregnant people in the state. As a reminder, Indiana’s law bans abortion at all stages of pregnancy. It limits where abortions may take place to hospitals and ambulatory surgical centers, despite the demonstrated safety of abortions performed in a clinic setting. It provides only narrow exceptions for instances of rape or incest until 10 weeks in pregnancy and for fatal fetal anomaly until 20 weeks. Although the law was subject to immediate challenge upon passage, the state supreme court ruled that the ban did not violate the Indiana constitution. Advocates now face an uphill battle in renewing their legal opposition to the law.  
    
    

• Maine:

• In Maine, Democratic Governor Janet Mills has signed a new bill into law that expands access to abortion in the state and defers to the expert judgment of providers. The previous law banned abortions after fetal viability, but it made an exception for circumstances where the patient’s life is in danger. Under the new law, a post-viability abortion is permissible if it is deemed necessary in the professional judgment of the physician. This makes Maine’s new law one of the most expansive in the country, and it does the crucial work of putting expert decision making authority into the hands of the medical professionals rather than legislators. In support of the amended law, Governor Mills cited the case of a Maine woman who was forced to travel to Colorado for an abortion at 32 weeks after discovering that her fetus had a deadly form of skeletal dysplasia. Under Maine’s previous law, she was unable to obtain care in her home state despite the devastating fetal diagnosis. Cases like this highlight the problem with laws that fail to engage with the complex realities of pregnancy and the need for physician’s to be able to exercise their expert judgment in concert with a patient’s wishes. 
  

• Ohio:

• As we have discussed in previous issues of this digest, Ohio is locked in an ongoing battle over whether a constitutional amendment protecting certain abortions will be on the November ballot. Last week, the Ohio Secretary of State certified that advocates have obtained enough valid signatures to satisfy requirements for a ballot initiative, taking them one step closer to a vote. However, Ohio Republicans continue to attempt to block the ballot measure–this time with a new lawsuit challenging its compliance with statutory requirements. As groups on both sides continue to fight over the ballot initiative, it is worth taking a moment to recall all of the steps that Republicans in the state have taken to attempt to stop it from advancing to a direct vote in November. 

• At the outset, Republicans brought a baseless legal challenge arguing that the ballot initiative should have been split into two separate issues: one for abortion and a second for all other reproductive healthcare. Had this argument succeeded, proponents of the initiative would have been forced to go back to the drawing board and collect twice as many signatures as they had planned for. The state Supreme Court struck down this argument, unanimously finding that the issues were properly contained within one initiative. Republicans then successfully set an August special election to determine whether to raise the threshold for passing any state constitutional amendment from a simple majority to 60%. Ohio Secretary of State Frank LaRose has admitted that this election is entirely about keeping abortion off of the ballot. In addition to the August special election, Ohio Republicans have now filed another lawsuit, primarily arguing that the petition proposal did not satisfy statutory requirements. The Ohio Supreme Court has set a deadline of August 7th to receive documentation from each of the parties. 

  The entire fight over this ballot initiative shines a light on ways in which direct democracy can be subverted by special interests. It also begs the question–if Republicans are so certain that Ohioans don’t support abortion, then why not simply let them vote on it?
  
  

• Alabama: 

• A group of Alabama health care providers have filed suit in federal court, challenging Attorney General Steve Marshall’s threats to prosecute individuals who help Pregnant Alabamians over state lines to obtain an abortion. The Complaint argues that the Attorney General’s threatened actions are a violation of due process, the First Amendment, and the fundamental right to travel. It also places the challenge in the context of Alabama’s high maternal mortality rate and the reality that women of color are disproportionately impacted by a lack of access to healthcare. This lawsuit comes on the heels of the challenge in Idaho to the state’s “abortion trafficking” law.  In the Idaho case, A federal judge has just issued a temporary injunction blocking Idaho Attorney General Raul Labrador from prosecuting providers for referring patients out of state for abortion care. With the erosion of Roe’s legal reasoning, the landscape of legal arguments for preserving access to abortion is changing. Arguments for access are now turning on concepts like the right to travel, freedom of expression and even religious freedom. Many of these legal theories are as yet untested in an abortion context, and the litigation that unfolds in the coming months and years will inform the strategies used by the next generation of advocates. 
  

• Illinois:

  • Illinois has joined the ranks of states passing legislation aimed at deterring “Crisis Pregnancy Centers” from engaging in deceptive and misleading practices in order to achieve their goal of dissuading pregnant people from accessing abortion care. Crisis Pregnancy Centers, commonly referred to as CPCs, are certain facilities that represent themselves as health care clinics in name, appearance and advertising, in order to attract pregnant people and dissuade them from seeking abortion care. As ACOG explains, “[s]taff members at these unregulated and often nonmedical facilities have no legal obligation to provide pregnant people with accurate information and are not subject to HIPAA or required by law to maintain client confidentiality” and many “are affiliated with national organizations that provide funding, support and training to advance a broadscale antiabortion agenda.” CPCs often use deceptive wording on their websites about abortion so that they appear in search results for abortion care. They also spread disinformation about the risks of abortion including advancing an “abortion as trauma” model, making false statements that abortion increases the risk of certain diseases such as breast cancer, and pushing the medically unsubstantiated claim that medication abortion can be reversed. These centers utilize manipulative and coercive tactics to prey on pregnant people who are seeking legitimate information and medical care in order to advance their anti-choice agenda. 

  • In response to the proliferation of CPCs, states like Illinois have passed legislation aimed at deterring the centers from lying to the public. The new Illinois law is an expansion of the state’s existing consumer fraud protections; it subjects these centers to civil liability and penalties if they are found to be in violation of the law. Shortly after the bill was passed, anti-abortion groups challenged it as a violation of their First Amendment Rights, arguing that it penalizes them for their pro-life viewpoint. Illinois Attorney General Kwame Raoul responded by asserting that he is confident that the law will withstand legal challenge, as nothing in the First Amendment permits entities to lie to the public. Late on Thursday, August 3rd, a Trump-appointed federal judge issued an oral order granting a preliminary injunction temporarily blocking the new law from taking effect.

What else is happening in access? 

• The political fight over medication abortion has now reached the first health-related spending bill to pass through the House this year. Lawmakers are at odds over a proposed rider that would alter the FDA’s current policy of allowing mifepristone, one of two common medication abortion drugs, to be sent via the mail and dispensed at pharmacies. 

• Iowa has filed an appeal challenging a state district court’s grant of a preliminary injunction blocking implementation of the state’s 6-week ‘fetal heartbeat’ abortion ban. 

• Arkansas is appealing a federal court’s decision striking down the state’s gender affirming care ban. The appeal was anticipated and the case will now go up to the Eighth Circuit Court of Appeals. 

• In Florida, advocates are advancing their efforts to get abortion on the 2024 ballot, although they are aware that the state Supreme Court has the power to strike the proposed initiative if they determine that it is not sufficiently clear. Republicans are highly motivated to keep these ballot initiatives away from voters, as every time abortion has been on a state ballot post-Dobbs, it has uniformly won. 

• Two transgender patients are suing Vanderbilt for sharing their health records with the Tennessee Attorney General, citing the AG’s hostility towards gender affirming care in the state and the state’s harsh gender affirming care ban. 

• You can read the detailed account of how two teen parents who were unable to obtain an abortion because of Texas’s laws are navigating life as young parents to twins two years after the fact. 

• A new study sheds light on shifting public opinions about when in pregnancy abortion should be legally permissible, showing a trend towards opposition to any government intervention into medical decision making.
  

Issue of the Week: The problem with the viability standard 

This week, we are going to take a break from our series on ways that advocates are pushing back against abortion bans to discuss an important and unavoidable subject in the ongoing conversation about abortion policy: the viability standard. 

If  you follow reproductive rights policy at all, there are few phrases that you will hear thrown around with greater frequency than “fetal viability.” In addition to the trimester framework, fetal viability has become an accepted way to frame conversations about appropriate abortion policy. But here's the thing: fetal viability is a medical concept, not a legal, ethical or moral one. Although “viability” as a medical term exists in its own right, fetal viability as a legal standard was created, not by experts in the medical field, but by a Supreme Court clerk at the time of Roe’s consideration. And, in the decades since Roe, the concept of viability as an acceptable legal demarcation has gone relatively unchallenged. Post-Dobbs, many states continue to use it as a guiding standard. For example, the Ohio ballot initiative discussed above would permit lawmakers to restrict abortion after fetal viability, as the proposed initiative defines it. Although mixing ideology with medicine has become standard practice in the politics of abortion, the treatment of viability as a fixed moment in gestation can lead to legislation that is medically inaccurate and out of alignment with the realities of pregnancy. It also fails to account for the many reasons why people may need abortions later in pregnancy. 

Fetal viability is generally defined as the point at which a fetus can sustain survival outside the uterus; this commonly occurs somewhere between 24 and 28 weeks LMP. Although the vast majority of abortions occur during the first trimester (around 93%), and less than 1% occur after 21 weeks gestation, pregnancy is exceedingly complex and abortions later in pregnancy can become necessary for any number of reasons. Legislation that relies on gestational age to define viability and declare when abortion is permissible fails to engage with these complexities. As ACOG explains, “[f]etal viability depends on many complex factors, of which gestational age is only one[,]” and while “gestational age may be helpful in predicting the possible chance that the fetus would survive at time of delivery, many other factors also influence viability, such as sex, genetics, weight, circumstances around delivery, and availability of a neonatal intensivist health care professional.” Even taking all of these factors into consideration, it is still not possible to predict survival with absolute certainty or to predict quality of life if survival is feasible. Fetal viability is not a simple calculation based on gestational age. Although health care providers are able to use a variety of tests and methodologies to assess fetal development, there is not a definitive way to diagnose viability, and making that determination often comes down to clinical judgment and case-specific factors. Clinicians should be able to use their expertise to make those judgments, without the law drawing bright lines that don’t account for a particular patient’s medical circumstances. This kind of harsh line-drawing is especially inappropriate when the law seeks to attach civil, criminal and professional penalties to providers who are found to be in violation. 
Abortion later in pregnancy is heavily politicized, with politicians and anti-abortion groups describing it in terms that simply do not comport with reality (for example, former President Trump’s statements about “ripping babies straight from the mother’s womb”). However, the reality is that abortion later in pregnancy, like all abortion, is a matter of health care. Regardless of any individual’s personal views on the morality of abortion, patients are best served when they are able to make decisions in consultation with a trusted expert provider who knows the facts of their case. Legislation that interferes with that relationship harms that standard of care, erodes provider-patient trust, and inevitably paves the way for worsened health care outcomes.