Developments in Abortion, Autonomy, and Access: 

Since L4GG’s last digest, two state supreme courts have ruled against abortion, allowing Indiana’s total abortion ban to go into effect and South Carolina to restrict access to approximately 6-weeks gestational age. A federal court out of West Virginia has dismissed a lawsuit relating to mifepristone, Ohio advocates continue to fight for a reproductive health ballot initiative, and debates about gender-affirming care and abortion continue in courtrooms and statehouses all over the country. Please read on for more detail.  

Legal Changes at the State Level: 

• Brief Overview: 

• Indiana: Abortion is now banned in Indiana, following the state Supreme Court’s denial of the ACLU and Planned Parenthood’s request for rehearing. The law contains narrow exceptions for the life or health of the pregnant person, lethal fetal anomalies detected prior to 20-weeks gestation, and circumstances of rape or incest prior to 10-weeks gestation. 

• South Carolina: On August 23, the South Carolina Supreme Court issued an order upholding the state’s renewed ‘fetal heartbeat’ ban, which restricts abortion to approximately 6-weeks gestational age. This ruling comes just months after the court struck down a nearly identical ban. 

• West Virginia: A U.S. District Judge out of West Virginia dismissed the majority of a case challenging West Virginia’s ban on mifepristone. The case was brought by GenBioPro Inc., the manufacturer of the generic version of mifepristone. They argue that the ban conflicts with federal regulation of the drug, which approves of its use for medication abortion. 

• Ohio: The saga over the proposed reproductive health constitutional amendment in Ohio continues this week, as advocates have been forced to file a lawsuit challenging the summary language approved by the ballot board. The phrasing of the summary is important, as this will be the language that voters see in the ballot box when they decide which way to vote. 

Legal Analysis: 

• Indiana: 

• Following the Indiana Supreme Court’s denial of the ACLU and Planned Parenthood’s request for rehearing, Indiana’s total abortion ban is now operative.. Although abortion has been functionally unavailable in the state since August 1st, when the law was initially set to go into effect, advocates had hoped that the court would grant their petition and put the ban on hold while further litigation over the ban’s constitutionality played out. Justice Christopher Goff dissented from the opinion, stating his concerns about the contours of the life and health exception and asserting that, “having declared the right of a woman to protect her life, [the] court should not now let that right go unprotected.” His concerns are consistent with the reality of how vaguely written life and health exceptions are playing out across the country. As a reminder, the Indiana ban prohibits abortion at all stages of gestation with narrow exceptions for 1) the health of the pregnant person; 2) lethal fetal anomaly if the gestational age is 20-weeks or less; and 3) rape or incest if the gestational age is 10-weeks or less. In a survey of the 8 major hospital systems in the state about whether they would provide abortions in cases of rape or incest, only 1 affirmed that they would perform the procedure; 3 (religious affiliated hospitals) stated that they would not provide such abortions, 2 did not respond to a request to comment, and 2 declined to comment. Indiana is the 15th state to fully ban abortion, with many others severely limiting access or attempting to ban it altogether. 
  

• South Carolina:

• South Carolina’s Supreme Court issued a ruling upholding the state’s renewed 6-week 'fetal heartbeat’ ban, narrowing abortion access in the state to a gestational age when many people do not yet know that they are pregnant. The order comes mere months after the state supreme court struck down a nearly identical 6-week ban on the grounds that it was unconstitutional. The court reasoned that, although the 2023 law infringes on a pregnant person’s “right of privacy and bodily autonomy,” those interests do not outweigh “the interest of the unborn child to live.” The South Carolina Supreme Court is all-male, after the Republican majority legislature replaced former Justice Kaye Hearn in February. Only Chief Justice Warren Beatty dissented from his colleagues, citing his concern that the way fetal cardiac activity is characterized in the bill is “medically and scientifically inaccurate” and is a “quintessential example of political gaslighting; attempting to manipulate public opinion and control the reproductive health decisions of women by distorting reality.” Despite conflicting arguments by the parties and medical ambiguity, the majority’s opinion failed to define “fetal heartbeat,” instead stating in a footnote of the order that it would leave that question for “another day.” Unfortunately, physicians who face devastating penalties if they are found to be in violation of the law do not have the luxury of operating in uncertainty until “another day” comes. Providers in the state have already reported that the vague law is having a chilling effect on the practice of reproductive health care, and this confusion and ambiguity is exactly what anti-abortion legislators are counting on. 

• West Virginia: 

• In West Virginia, a U.S. District Court Judge has dismissed the majority of a case challenging the state’s ban on mifepristone. The plaintiff in the case, GenBioPro Inc., the manufacturer of the generic version of mifepristone, argues that the state’s prohibition conflicts with federal regulation and approval of the drug for use in medication abortions. In his ruling, Judge Chambers stated that SCOTUS “has made it clear that regulating abortion is a matter of health and safety upon which States may appropriately exercise their police power.” Although Judge Chambers dismissed the majority of the suit, he allowed GenBioPro’s challenge to West Virginia’s ban on the use of telemedicine for abortion to survive, finding that it was in conflict with federal law. However, due to the severe restrictions on abortion availability in the state, the benefit of that ruling is limited. Interestingly, although he granted dismissal, Judge Chambers’ opinion is unambiguous in its appraisal of the safety of mifepristone. In his ruling, he states that “Defendants have not disputed the safety of the mifepristone REMS, nor could they,” and explains that, with respect the Fifth Circuit case challenging the FDA’s approval of mifepristone, the court “has reviewed the Fifth Circuit decision and does not find its primary determinations to be persuasive.” 

• Ohio: 

• In Ohio, advocates supporting the reproductive health ballot initiative that will be before voters in November have been forced to file another lawsuit, this time challenging the summary language approved by the ballot board. The summary language will be what voters actually read in the ballot box when they decide whether to vote for or against the amendment, so the manipulation of the language is just one more opportunity for anti-abortion Republicans to attempt to deceive and coerce voters. The summary language diverges from the actual proposed amendment in a number of material ways. First, although the amendment would protect a whole spectrum of reproductive decisions including contraception, fertility treatments, miscarriage care, and continuing one’s pregnancy, the approved summary only mentions abortion by name. Further, the clause in the proposed amendment that explains that the state shall not interfere with the right to pre-viability abortion has been changed to read that the “citizens of the state of Ohio” may not interfere with that right. This change in language is blatantly deceptive, as it is the state itself that would be prohibited from passing laws infringing on the rights of pregnant people, not Ohio citizens. The summary additionally changes the phrase “pregnant patient” to “pregnant woman,” and the medical term “fetus” is changed to “unborn child.” None of these changes actually provide clarity about the content of the amendment for the voters who will decide on its passage; instead, they muddy the waters and replace accurate language with politically coercive and misleading phrasing. Although we have said it before, it bears repeating yet again that if Ohio Republicans are so sure that their constituents do not support abortion–why not just let them vote on it in a fair and clear election? 

More News in Access: 

• Virginia Governor Glenn Youngkin is considering a 15-week abortion ban as the state gets closer to its November legislative election. If Virginia Republicans manage to flip the Senate and hang on to their current majority in the House, the Governor will be emboldened to advance a more conservative agenda. This could be devastating for abortion in the South, where Virginia is one of the only remaining strongholds of access. 

• In Alliance for Hippocratic Medicine v. FDA, Fifth Circuit Judge Ho has been criticized for arguing that the plaintiffs have standing to challenge the FDA’s approval of mifepristone because, similar to environmentalists who suffer harm from governmental actions that threaten an animal’s habitat, “[u]nborn babies are a source of profound joy for those who view them,” and “[d]octors…experience an aesthetic injury when they are aborted.” 

• In Texas, a state district court judge granted an injunction pausing the state’s ban on gender-affirming care for minors. The state appealed that ruling, and on Thursday, the Texas Supreme Court lifted the injunction, allowing the ban to go into effect during the pendency of litigation. 

• New Mexico’s Supreme Court has agreed to hear oral arguments on whether local abortion bans enacted by counties and cities across the state are a violation of state law, which protects the right to abortion. 

• Kentucky’s gubernatorial race will be a crucial determinant of future abortion access in the state. 

• In another win for gender-affirming care, a federal judge in Georgia has issued an injunction temporarily halting enforcement of the state’s ban on gender-affirming care for minors. This ruling is already under fire, after the Eleventh Circuit issued an adverse ruling in a federal case relating to Alabama. 

• In Nebraska, abortion groups have begun a push for a 2024 ballot initiative protecting abortion. 

• Missouri’s gender-affirming care ban is now in effect, following a judge’s denial of a legal challenge to the law. 

• Anti-abortion activists, including one who was found to be storing fetal remains in her D.C. home, have been convicted under the Freedom of Access to Clinic Entrances Act for blockading a D.C. abortion clinic for over three hours, disrupting care, and causing harm. They will face sentencing later this year.

Issue of the Week: Healthcare Amendments and Abortion Access

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 Veronica Dickstein.

A post-Dobbs world has forced abortion advocates to be creative about the strategies used to combat restrictive abortion bans. While a previous blog post featured religious freedom challenges to abortion bans, this post will focus on state-level healthcare-related constitutional amendments and how they are being used to protect abortion.

After the Affordable Care Act (ACA) was passed by the Obama administration, Wyoming, Ohio, Alabama, Arizona, and Oklahoma all amended their constitutions in an effort to circumvent the ACA’s individual coverage mandate. Generally, these state constitutional amendments assert that citizens of the state have a right to make healthcare decisions for themselves. For example, Ohio’s 2011 Healthcare Care Freedom Amendment states that “no federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.” Alabama’s Amendment 864, Article 27, Section 2 of the Arizona Constitution, and Oklahoma’s 2010 Healthcare Freedom Amendment each state exactly the same.

Although the language in these amendments was not intended to protect abortion, their broad character leaves room for pro-choice arguments. Pro-choice advocates in Wyoming and Ohio argue that they protect a citizen’s right to make healthcare decisions without governmental intrusion, including the decision to have an abortion. Conversely, defendants respond that, because these amendments do not completely prevent the government from regulating healthcare, prohibitions and limitations on abortion remain constitutional.

In Johnson v. State of Wyoming, the plaintiffs challenge the state’s total abortion ban under Wyoming’s healthcare amendments and state constitutional guarantees of equality, due process, equal protection, bodily autonomy, and privacy. A related argument was used by Wyoming judge Melissa Owens earlier this summer to at least temporarily block proposed legislation that would ban abortion pills in the state. Similarly, advocates in Preterm-Cleveland v. Yost rely on the Ohio Healthcare Care Freedom Amendment and state constitutional protections for equal protection, individual liberty and privacy to challenge Ohio’s attempted fetal heartbeat ban. In August 2022, Wyoming’s Supreme Court granted a preliminary injunction, temporarily blocking the state’s ban from implementation, and in October 2022, Ohio’s First District Court of Appeals issued a preliminary injunction in Preterm-Cleveland v. Yost. In both of these decisions granting preliminary injunctive relief, the courts expressed concern about the vagueness of the bans, saying it was unclear how health-related exceptions would be applied to medical decision-making – a concern that is echoed for abortion bans across the country. Vague non-medical language harms the provider’s ability to effectively exercise their expert judgment, developed through years of education and training, in determining the appropriate course of treatment. This restricts or delays patient access to high-standard care, harming health outcomes and impeding on the right to make healthcare decisions for oneself in violation of Ohio and Wyoming’s state constitutions. And, the invocation of 14th Amendment-esque protections as a supporting cast in cases that focus on the right to make healthcare decisions demonstrates the inherent interconnection between healthcare and questions of bodily autonomy, privacy, and freedom from governmental intrusion. 

Although the outcomes of these cases are not yet known, the strategy of using healthcare amendments to fight for abortion access is an extremely important one to watch, particularly in states that are traditionally hostile to abortion. These healthcare amendments are a potentially highly effective tool for protecting abortion access. They were originally enacted to promote a conservative agenda by stifling the effectiveness of the ACA, and their use for this purpose is both creative and a little ironic. As the ACA has “indisputably improved [health insurance coverage],” historically, efforts like these amendments to undermine it have not improved equality or medical care in America. Maybe now, through these cases, these amendments can find new life and efficacy in the reproductive rights arena, saving thousands of American lives.