Developments in Abortion, Autonomy, and Access: 

Abortion is set to go before the U.S. Supreme Court yet again, as the case challenging approval of mifepristone by the U.S. Food and Drug Administration (FDA) winds its way to the high court. Florida’s Supreme Court heard oral arguments last week on the constitutionality of the state’s abortion restrictions. Wisconsin Republicans are threatening to unseat a duly elected judge for politically partisan reasons, while Planned Parenthood Wisconsin has announced that it will resume offering abortion services for the first time in over a year. Threats to interstate travel continue, as states seek to extend their abortion bans beyond state borders. And, state-level battles over gender-affirming care for minors continue across the country. Because of the sheer volume of abortion and bodily autonomy news in this week’s digest, we are breaking from our normal format and omitting the “issue of the week.” But stay tuned as we share an extra special edition of that regular feature in the next Digest! Now, let’s dive into the key news from the last two weeks.

Legal Changes at the State Level

Brief Overview:

• AHM v. FDA (mifepristone): The Biden Administration has officially asked the Supreme Court to review the Fifth Circuit’s ruling limiting the availability and terms of use of mifepristone. Because of the high profile nature of the case and the important and consequential legal issues involved, it is extremely likely that SCOTUS will agree to hear the case. 
  

• Wisconsin: 

  • Planned Parenthood in Wisconsin announced on Thursday that it will resume providing abortion services on Monday, September 18 for the first time in over a year. This decision follows a July preliminary ruling from a state judge that an 1849 pre-Roe statute does not prohibit abortion. 

  • Wisconsin Republicans are threatening to remove recently elected Justice Janet Protasiewicz over claims that she should recuse herself from cases involving redistricting. Although this may not sound like a reproductive rights issue at first glance, Justice Protasiewicz’s election has shifted the court to a liberal majority at a time when Wisconsin’s abortion laws face a legal challenge that is likely to end up before the state’s highest court. 

• Florida:

  • Last week, Florida’s Supreme Court heard oral arguments about whether the state constitution’s privacy clause protects the right to abortion. The court’s decision will determine the constitutionality of the state’s currently operative 15-week abortion ban, as well as the 6-week abortion ban that Governor Ron DeSantis signed into law earlier this year. 

• Alabama:

  • Alabama’s Attorney General is doubling down on his position that helping a pregnant person obtain an out-of-state abortion is a prosecutable offense.

Legal Analysis: 

• AHM v. FDA (mifepristone): : 

• The Biden Administration has filed a Petition asking the Supreme Court to hear a challenge to the Fifth Circuit’s ruling limiting the availability of mifepristone, one of two drugs used in a standard medication abortion regime. The Supreme Court is not obligated to hear cases that come before it from the circuit courts of appeal. Generally speaking,  the Court denies the vast majority of requests for review, opting to not interfere with the lower courts’ judgment. However, the Supreme Court seems positioned to grant review of this case, given its high profile nature, potential consequences for other areas of the law, and several departures from well-accepted rules of law in the lower courts’ decisions. Now that the Biden Administration has filed its Petition, the anti-abortion physician organizations driving the litigation will have an opportunity to file their own brief, opining on whether they think the Supreme Court should review the case. It is likely to be several months before the Supreme Court makes a decision. If the Court agrees to hear the case, the parties will then submit their arguments on the merits. The outcome of this case will be incredibly consequential for both reproductive rights and health law generally, as it seemingly stands as the first time that a court has intervened to override the FDA’s expert judgment about the safety of a particular drug. 

• As a reminder on where this case stands, the Fifth Circuit issued a decision in late August finding that the FDA’s 2016 relaxation of mifepristone’s use regulations was improper, but allowing the drug to stay on the market because the plaintiffs’ challenge to the FDA’s underlying approval in 2000 was outside of the statute of limitations. At this time, the availability of mifepristone remains unchanged, as a result of a previous Supreme Court order that stayed the effect of any lower court decisions during the pendency of litigation.
  

• Wisconsin:

• In a huge win for abortion access in Wisconsin, Planned Parenthood Wisconsin has announced that it will resume providing abortions on Monday, September 18th. Abortion has been unavailable in Wisconsin since June of last year, with providers fearing prosecution under an 1849 anti-abortion law that came back into play after Roe was overturned. However, in July of this year, state court Judge Diane Schlipper issued a ruling that the 1849 law does not apply to abortion, but instead criminalizes feticide, or the killing of a fetus by assaulting or battering the pregnant person. “There is no such thing as an ‘1849 abortion ban’ in Wisconsin,” she wrote. Armed with this ruling, Planned Parenthood has made the decision to resume operations, providing critical access to healthcare for countless pregnant people in the region. According to Planned Parenthood, Madison’s website, they offer in-clinic abortion until 20-weeks, as well as medication abortion. Although this is incredible news, it is important to note that litigation in this case is ongoing  and there has not yet been a final ruling shielding providers from prosecution or guaranteeing a right to abortion in the state. We will continue to provide updates as the situation unfolds. 

• Wisconsin Republicans are threatening to try and remove recently elected Justice Janet Protasiewicz, if she declines to recuse herself from redistricting cases before the state’s Supreme Court. They claim that Justice Protasiewicz’s comments on the campaign trail about redistricting and abortion demonstrate that she will not adjudicate fairly. However, as the Associated Press reports, many former state justices have made public statements about issue areas, including gun rights, planned parenthood and lgbtq+ rights. In a state like Wisconsin, where state Supreme Court justices are elected, it is not uncommon for candidates to discuss specific subjects while campaigning. However, Justice Protasiewicz’s election gave the Wisconsin Supreme Court a 4-3 liberal majority for the first time in 15-years. The redistricting cases in question could disrupt Republicans’ stronghold on the state legislature. And, Justice Protasiewicz’s presence on the court drastically increases the likelihood of a favorable ruling on the state’s abortion laws. Generally, this section of the newsletter is dedicated to discussing changes in reproductive health law, and a segment like this would be saved for the section below covering other news in access. However, this developing story is of vital importance. It shows that the opposition is continuing to operate in bad faith, and that, when they lose in a free and fair election, they are willing to resort to other means to undo that loss. Removing a duly elected sitting justice for purely partisan reasons would be a stunning and disturbing disavowal of the democratic process by Wisconsin’s Republican party and it should unsettle onlookers on both sides of the aisle.

• Florida 

• Last week, the Florida Supreme Court heard oral arguments about the constitutionality of abortion restrictions in the state. Five of the seven current justices of the court were appointed by conservative anti-abortion Governor Ron DeSantis, and several of them have ties to the anti-abortion movement. The Florida Supreme Court previously ruled that the privacy clause in the state’s constitution extends to the decision to have an abortion. Advocates now argue that the state’s 15-week ban violates this previously recognized constitutional right. However, the state of Florida argues that the privacy clause was never intended to extend to reproductive rights, despite the court having previously found the exact opposite. At stake here is not just the currently operative 15-week ban, but also the 6-week ban that Governor DeSantis signed into law earlier this year. By the 6-week’s ban’s terms, it will go into effect 30 days after the Supreme Court issues a ruling finding that abortion is not constitutionally protected. Although it is likely to be a matter of months before the justices hand down a decision, the current makeup of the court leaves little reason to hope for a positive outcome. A negative ruling would knock out yet another access point in the already extremely restricted south, further limiting and delaying healthcare decisions. Pro-choice Floridians are already preparing for this outcome, in part by planning a campaign to get abortion access on the state’s ballot in 2024. 

• Alabama: 

• Alabama’s Attorney General appears to be standing behind his claim that Alabama can prosecute providers who refer pregnant people out of state for abortions. As a reminder, anti-choice advocates insisted when Roe fell that abortion should be handled by each state on its own terms, but in this case (as with other states), it is not enough for Alabama to regulate abortion within its own borders and under its own laws. The Republican AG now wants to penalize providers, and potentially family and friends, who assist Alabamians in accessing healthcare that is completely legal in another state. He appears to be arguing that, although it is legal for a pregnant person to get an abortion in another state, he can use state conspiracy laws to prosecute those who may help that person by providing assistance such as transportation, finances or information. The ACLU has filed a lawsuit challenging Alabama’s position. In it, they argue that Alabama law does not authorize such prosecutions and that it would “a blatant extraterritorial overreach of state power that not only contravenes the Due Process Clause, the First Amendment, and the fundamental constitutional right to travel, but also the most foundational principles of comity upon which our federalist system rests.” Alabama is not alone in its attempt to reach beyond its borders and regulate abortion. As we have reported on in the past, Idaho passed its own “abortion trafficking” law earlier this year. And, in Texas, where the abortion is also banned, some cities and counties have proposed ordinances that would make it illegal to use highways to transport people out of state for abortion. The architects behind this strategy are specifically targeting interstates and areas with access to airports, in an effort to hem in abortion seekers and force them to carry a pregnancy to term. 

More News in Access: 

• Data from Guttmacher shows how abortion numbers have increased or plummeted at the state-by-state level since Roe was overturned and patients have been forced to travel out of state or carry a pregnancy to term. 
  

• In building a post-Roe future, the reproductive rights movement faces important questions about how to frame the right to bodily autonomy. Advocates are grappling with whether to compromise for the sake of political moderation or use this moment as an opportunity to push for better, stronger and more comprehensive protections than were ever available under Roe. 
  

• On the 2-year anniversary of Texas’s infamous ‘SB8’ (the 6-week bounty hunter law passed before Dobbs), Ms. Magazine recalls its impact and the women who have suffered  under it. And, the harm is not just limited to the patients themselves; physicians are also suffering under a legal regime that criminalizes the ethical practice of their chosen profession.
  

• In a huge win for reproductive health advocates in Mexico, the country’s supreme court has decriminalized abortion, ruling that its continued criminalization constitutes violence and gender discrimination. 
  

• Idaho faces an impending maternal health crisis as the state’s draconian abortion laws cause doctors to leave the state and recruitment and retention of new providers to fall. A statement provided by Idaho Republican Representative John Vander Woude sheds light on how well thought out these anti-abortion laws are–he stated “[w]e never looked that close, and what exactly that bill said and how it was written and language that was in it…[w]e did that thinking Roe v. Wade was never going to get overturned.” 
  

• Against the wishes of many of his fellow Republican senators, Alabama Senator Tommy Tuberville continues to hold up more than 300 nonpolitical military promotions, in protest of the Pentagon’s policy of allowing time off and reimbursement for service members who need an abortion. 
  

• A district court out of Georgia has reversed course on gender affirming care, allowing the state’s ban to resume, after the 11th Circuit Court of Appeals–the federal appeals court over Alabama, Florida and Georgia–issued an adverse ruling in a case challenging Alabama’s ban. 
  

• Women in Idaho, Tennessee and Oklahoma have filed suit against their respective state’s abortion bans, recounting the deeply personal stories of how each state’s harsh and poorly written laws have placed their lives in jeopardy during pregnancy and forced their physicians to provide substandard medical care. These new lawsuits follow on the heels of the Texas lawsuit brought by women affected by the state’s total abortion ban.