Developments in Abortion, Autonomy, and Access: 

This week’s Digest highlights several important reproductive health resources for providers, activists, and fellow reproductive rights advocates. We also discuss breaking news out of North Dakota, new and ongoing state and federal litigation impacting the accessibility of reproductive health care across the country, and updates on anti-democratic attacks against abortion rights ballot initiatives. Please read to the end for the news that you need to know.

This Week’s Must Read:

This week, rather than highlighting a ‘must-read,’ we are using this space to uplift key resources from our partners and colleagues in the fight for reproductive justice:

• RHITES Updated Map of State Policies Impacting the Provision of TMAB (Telehealth for Medication Abortion): The first resource that we are highlighting comes from our partners at the Reproductive Health Initiative for Telehealth Equity and Solutions (RHITES). Focusing on the intersection of reproductive rights and justice and telehealth, RHITES works to “bridge equity gaps and integrate equitable policy and advocacy strategies in reproductive telehealth solutions.”

  RHITES updated Map of State Policies Impacting the Provision of TMAB is a vital resource for tracking and understanding access to telehealth abortion at the state level. To learn more, join RHITES on September 19th for their webinar “Innovating Under Pressure: Leveraging Telehealth for Abortion Care in a Post-Dobbs World.” With panelists from across the reproductive healthcare space, the webinar will cover trends in TMAB provision, shield law protections, and leveraging telehealth to reach marginalized communities in restrictive environments. Register for the webinar here.  

• UCLA School of Law Center on Reproductive Health, Law, and Policy’s State Law Guide on Shield Laws for Reproductive Health and Gender-Affirming Health Care:  States across the country have passed shield laws in response to abortion and gender-affirming care bans. Although these shield laws have many similarities, they differ in exactly what they protect and how they purport to do so. This comprehensive guide provides critical shield law analysis, mapping which states have enacted them, how they each operate, and what they do and do not protect. 

• L4GG’s Policy Resource Hub for Reproductive Health: L4GG’s Policy Hub tracks abortion laws in every U.S. state and occupied territory, every single day, providing you with a free, reliable, and up-to-date source of truth on the state of reproductive rights. You can sign up for the Hub here.

Legislation & Litigation:

• Judge Strikes Down North Dakota’s Abortion Ban: On Thursday, North Dakota Judge Bruce Romanick issued a ruling striking down the state’s abortion ban. He found  that the ban unconstitutionally infringes “on a woman’s fundamental right to procreative autonomy” and is not narrowly tailored “to promote women’s health or to protect unborn human life.” His decision determined that North Dakotans have a fundamental right to abortion pre-viability. He also found that the law was unconstitutionally vague with respect to its exceptions. Although this is a huge win for abortion rights, Judge Romanick’s decision is certain to be appealed by the state. 

• Texas Sues Over HIPAA Protections for Reproductive Health Data: Texas Attorney General Ken Paxton has filed a lawsuit against the U.S. Department of Health and Human Services (HHS), challenging a new HIPAA rule aimed at protecting reproductive health care data. The rule, which is set to take effect on December 23rd, protects patient health information relating to lawfully provided reproductive health care from disclosure. It was promulgated by the Biden Administration in response to increased post-Dobbs threats of investigation and criminalization for patients forced to travel to other states to receive care. Paxton’s lawsuit argues that the new rule exceeds HHS’s authority and interferes with the state’s investigative abilities. The lawsuit similarly argues for the invalidation of a 2000 HIPAA privacy rule relating to the provision of patient information for purposes of government investigation more generally. 
  
  Abortion is currently banned in Texas. It merits reiterating that the HIPAA rules that Texas seeks to overturn only protect information related to lawful care. In other words, Attorney General Paxton’s lawsuit does not seek to vindicate the state’s ability to investigate unlawful activity, but rather to obtain information on legally obtained health care.. This kind of state-sponsored surveillance of individual medical decision making is chilling and should act as a reminder of the importance of continued advocacy for bodily autonomy without government interference. 

• Abortion And Birth Control Access in Alaska: Alaska Judge Josie Garton has struck down a state requirement that abortions be provided only by licensed physicians. In the case, Planned Parenthood argued, and Judge Garton agreed, that there is no medical justification for prohibiting advanced practice clinicians, including physician assistants and registered nurses, from providing certain common abortion services, including medication abortion. Judge Garton found that the restriction burdened patients’ access to care, particularly in a state with large rural areas where access to doctors can be limited. 
  
  As Judge Garton moved to improve reproductive health care in the state, Alaska’s Governor Mike Dunleavy vetoed a bipartisan bill that would have expanded Alaskans’ access to contraception. The bill would require insurers to cover up to a year’s worth of contraception at a time, reducing the need for frequent travel to a pharmacy and easing barriers for victims of domestic violence. In a letter regarding the veto, Governor Dunleavy stated without explanation his belief that the legislation was “bad policy.” 

• Title X Funding Restrictions in Oklahoma: The Supreme Court has allowed HHS to block Title X funding to Oklahoma because of the state’s refusal to comply with a requirement that it provide pregnant patients with comprehensive information about their options, including abortion. The 10th Circuit previously ruled that Oklahoma could satisfy its obligation by merely providing patients with a national hotline number that gives information about all pregnancy options. However, Oklahoma argues that even providing a general pregnancy options hotline is in conflict with its abortion ban. As a result of the state’s failure to comply, HHS will withhold those funds this year. 

• Abortion Restrictions Blocked in Ohio: Last Digest, we reported on an Ohio judge blocking certain medically unnecessary abortion restrictions in the state, including a 24-hour waiting period. A Hamilton County Judge has now granted a preliminary injunction blocking laws that prohibit advanced practice clinicians from providing medication abortion and interfering with the prescription of mifepristone consistent with medical evidence. The court found that these laws are likely unconstitutional under the newly passed Reproductive Freedom Amendment to Ohio’s Constitution. This process of unwinding state restrictions on abortion after the passage of a constitutional amendment will likely be repeated in any state that votes to enshrine abortion rights this November. 

• Gender-Affirming Care at the Supreme Court: As we have reported previously, gender-affirming care is currently before the Supreme Court in U.S. v. Skrmetti, with arguments likely to take place sometime in December. This is the first time that the Supreme Court has had the opportunity to directly consider the constitutionality of bans on gender-affirming care for minors, and the outcome of the case will impact laws passed in almost half of U.S. states. Dozens of conservative politicians have filed an amicus brief arguing in favor of the health care bans, while California Attorney General Rob Bonta has led a coalition of 20 states in opposing the restrictions. While this case sits before the Supreme Court, litigation over gender-affirming care bans continues in the lower courts. Last week, the 11th Circuit Court of Appeals ruled to allow Alabama to enforce its ban, clearing the way for other states in the Circuit, including Florida, to begin to enforce their own bans. Meanwhile, advocates in South Carolina have filed a lawsuit challenging that state’s ban. Although the text of the question presented in Skrmetti is limited to gender-affirming care, the case will be one of the first opportunities that the high court has had to consider the appropriate scope of Dobbs and its impact on equal protection rights outside of the abortion context. 

• Indiana Judge Declines to Broaden State Abortion Ban: Judge Kelsey Hanlon of Indiana ruled against Planned Parenthood on Wednesday, declining to expand the life or health exception to the state’s abortion ban. Although she acknowledged the impossible position that providers have been placed in, she stopped short of finding that the narrow exception violates the constitutional rights of Indiana patients.
  

Ballot Initiatives:

• The States Where Abortion is On the Ballot:  For a quick overview of where abortion is on the ballot in November, take a look at this piece from Truthout. 

• South Dakota Ballot Measure in Court: The lawsuit against South Dakota’s abortion rights amendment is moving forward, despite the trial being set for after early voting begins. Although Secretary of State Monae Johnson has already certified the measure, Life Defense Fund–an anti-abortion group–is challenging the validity of the signatures, arguing that Dakotans for Health, the group behind the measure, failed to comply with certain state laws. Life Defense Fund argues that the measure can be invalidated after the fact, even if voters pass it in November. Dakotans for Health has decried the effort as undermining voter confidence and interfering with the election process

• Oral Argument Held over Nebraska Abortion Measure: Nebraska’s Supreme Court heard oral arguments on Monday over the state’s abortion rights ballot measure. Opponents of the measure argue that it violates the single-subject rule, a state law requiring each measure to only include one subject. They purport that the measure deals with separate issues because it would allow abortion until viability, and then permit abortions to save the patient’s life or health post-viability. Of course, this argument would render nearly every abortion law in the country invalid, as almost all states impose differing restrictions as pregnancy progresses. As a reminder, there will also be a pro-life abortion measure on the ballot in November; if passed, it would constitutionally enshrine the state’s current ban on abortion after 12 weeks. Proponents of the pro-choice measure argue that if it is struck based on the single-subject rule, then the 12-week measure must also be struck. 

• Missouri Ballot Measure Before the State Supreme Court: Following a week of intense legal maneuvering, Missouri’s Supreme Court held on Tuesday afternoon that the state’s abortion rights measure can appear on the ballot. The fate of the initiative was thrown into question following a lower court's ruling that it failed to comply with a requirement to list the laws that would be impacted if the measure passes. Although state law requires an initiative petition to include all existing laws that would be repealed by the measure, attorneys supporting the measure argue that it is in full compliance, as the amendment would not literally repeal any current abortion laws, it would instead create a new superseding law. The process of reconciling a new constitutional amendment with existing laws is not unique; Ohio is currently going through the process following the passage of its own abortion rights amendment last year. 

• Florida Police Questioning Petition Signers: Florida has ramped up its efforts to block the passage of an abortion rights ballot initiative. Reportedly, police have been questioning voters on their signatures supporting the measure, in some cases showing up at peoples’ homes. Governor DeSantis did not deny these reports and instead defended the police investigations as being aimed at guaranteeing the fairness of the November election.

Trend & Policy Watch:

• Support for Families Low in Abortion Ban States: Research conducted by Northwestern Medicine in Chicago finds that states with abortion bans are also the states that provide the least support to families. Researchers looked specifically at what types of social safety nets exist for parents and families, including paid parental leave, supplemental nutritional programs, and childcare assistance for low-income families, and compared that against the state’s abortion restrictions. Notably, Idaho–the state that is currently fighting to deny pregnant people the right to emergency abortions–was found to be the least family-supportive state. 

• South Dakota Releases Video Purporting to Clarify Abortion Ban: South Dakota’s Department of Health has released a legally mandated video purporting to clarify the bounds of the state’s abortion ban. The video fails to provide any meaningful guidance on when abortion is and is not lawful in the state; instead, it functionally recites the text of the law and provides non-medical disclaimers and generalities about the structure of the law. The lack of meaningful state guidance on the parameters of abortion bans has led to disastrous results across the country. 

• Data Theft At a Clinic Providing Abortions in Attleboro, Massachusetts: Four Women’s Health Center in Attleboro, Massachusetts has brought a lawsuit against a crisis pregnancy center, alleging data theft. The lawsuit stems from several instances of pregnant people using the clinic’s online chat service and subsequently being contacted to make an appointment at the CPC across the street, Abundant Hope. Four Women’s Health Center alleges that the CPC infiltrated their online systems and stole patient information. Crisis pregnancy centers are well known for attempting to intercept would-be abortion patients using misleading and outright deceptive tactics. 

• Abortion Drugs as Controlled Substances Threatens Healthcare in Louisiana: Providers in Louisiana are concerned about their ability to treat patients for non-abortion-related conditions now that mifepristone and misoprostol are set to be restricted as controlled substances. Although the Louisiana Department of Health sent out a memo attempting to clarify how misoprostol may continue to be used, Louisiana providers are not reassured. Like so many other abortion restrictions, the re-classification of mifepristone and misoprostol is not based in the realities of medical practice and threatens providers with liability without giving them meaningful guidance on how to manage a substantial change in standard treatment protocols. There is also no medically sound, apolitical justification for re-classifying these drugs as controlled substances; they are not dependency-forming and their safety and efficacy records have been well documented for decades.