Developments in Abortion, Autonomy, and Access:
This week’s Digest begins by featuring the devastating recent reports from ProPublica about the deaths of two Georgia women as a result of the state’s abortion ban. We also discuss litigation outcomes in Arizona, North Dakota and Tennessee, developments with abortion ballot initiatives, and policy updates. Please read to the end for the news you need to know.
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This Week’s Must Read:
Last week, ProPublica released two breaking stories of women who lost their lives to Georgia’s abortion ban. These women’s deaths were both entirely preventable had they received the care that they desperately needed and deserved. We remember them and recommit to fighting for full, accessible abortion access, in their names.
Amber Thurman died of complications related to sepsis after the hospital failed to provide her with a simple and standard procedure to remove retained fetal tissue after a legal medication abortion. She leaves behind a 6-year-old son.
Candi Miller was a mother of three who suffered from a systemic illness that her doctors told her made pregnancy dangerous for her health. Miller sought to self-manage her abortion after becoming unexpectedly pregnant at 41, but when the abortion did not expel all of the fetal tissue, she did not go to the hospital for fear of Georgia’s laws. Without those laws, she would have received the simple treatment that she needed, and her children would still have their mother.
Unfortunately, we know that while these may be the first direct deaths reported post-Dobbs, they will certainly not be the last. Anti-abortion activists are already exploiting these women’s stories to push lies about the dangers of taking abortion pills, arguing that it was abortion, not abortion bans, that killed Candi and Amber. However, complications due to self-managed abortions are a known, infrequent risk that is always treatable with proper medical care. Further, D&Cs are a standard, safe and common treatment for both abortions and miscarriages, and we owe it to these women to tell the truth about their deaths: but for Georgia’s abortion ban, they would both be alive and with their families today.
Amber and Candi’s lives mattered. Their families’ suffering matters. Their stories matter. We have an obligation to honor their memories by continuing to speak up and speak out to ensure that what happened to them can never happen again.
Legislation & Litigation:
Arizona 1864 Abortion Ban Repealed: Arizona’s 1864 abortion ban has officially been repealed. The state’s supreme court issued a ruling earlier this year finding that the Civil War-era law, written before Arizona even had statehood, was an enforceable abortion ban. However, after some political maneuvering, legislators voted to repeal the law, with Governor Katie Hobbs signing the repeal bill. Abortion is currently legal until 15 weeks gestational age; however, In November, Arizonans will have the opportunity to vote on whether to enshrine abortion rights into the state’s constitution.
North Dakota Abortion Ban Repealed: As we reported on in our last Digest, North Dakota Judge Bruce Romanick issued a ruling striking down the state’s abortion ban as unconstitutional. Today, he signed an order officially repealing the ban. Shortly after the order was handed down, attorneys for the state filed a motion asking the court to allow the ban to remain in place until the state supreme court can hear the case. A hearing on that motion is set for October 10.
North Dakota and the Pregnant Workers Fairness Act: Two weeks after a North Dakota judge struck down the state’s abortion ban, federal Judge Daniel Traynor issued an order finding that over 8,000 Catholic employers are relieved from compliance with requirements under the Pregnant Workers Fairness Act to provide time off for IVF treatments and abortion. Judge Traynor ruled that the federal government cannot enforce those rules against the Catholic Benefits Association and the Catholic Diocese in Bismarck during the pendency of litigation. In the opinion, Judge Traynor found that the regulations likely infringed upon the Catholic employers’ freedom of religion. He employed openly religious language, writing that “[i]t is a precarious time for people of religious faith in America,” and describing the “dire assessment” that the current American climate “has been described as a post-Christian age.” To be clear, the challenged rules would not require employers to pay for IVF or abortions or to even provide paid time off; it neutrally requires that employers accommodate time off for pregnancy-related conditions, which have been interpreted to include IVF and abortion.
Tennessee Abortion Trafficking Law Blocked:
In a piece of good news out of the South, a federal judge has issued a preliminary injunction
blocking Tennessee’s ‘abortion trafficking’ law, which went into effect earlier this summer. The law, which is written using broad imprecise language, criminalizes assisting a minor out of the state to obtain an abortion without the consent of their parent; the minor’s own consent to the abortion is not a defense to prosecution. In fact, the law still applies in cases where the minor’s parent is the one who impregnated them–allowing the perpetrator to pursue charges. Judge Aleta Trauger ruled on First Amendment overbreadth grounds, writing that the plaintiffs “do not just have a right to speak their message; they have a right to live in a state where that message can be repeated by all who find it valuable to all who wish to hear it. Otherwise, there would be no actual freedom of speech—just freedom of a few speakers to address a silenced populace. The First Amendment guarantees more[.]” Tennessee’s law mirrors a nearly identical Idaho law that has also been temporarily blocked.
Ballot Initiatives:
Nebraska: The Nebraska Supreme Court has ruled that both the state’s pro-choice ballot initiative and the anti-abortion initiative will appear before voters in November. Opponents of the pro-choice measure, which would enshrine pre-viability abortion rights, brought a lawsuit arguing that it violated the state’s requirement that each measure contain only one subject. They alleged that the measure contained three subjects: 1) abortion pre-viability; 2) abortion post-viability; and 3) women’s health. The court rejected this argument, writing that the “fact that the drafters…have made certain choices regarding the specific limits, parameters, and definitions does not mean that each such provision is a separate subject.” These kinds of last-minute legal arguments to invalidate ballot measures before November are happening in nearly every red state with abortion on the ballot.
Arizona Polling: A New York Times/Siena College poll now shows that 58% of state voters support the pro-choice ballot measure that will be on Arizona’s November ballot; Arizona requires only a simple majority for a measure to pass.
South Dakota: In South Dakota, a trial over the validity of a pro-choice ballot initiative will not happen until after the November election, at which point voters will have made their choice. The delay in trial appears to be due to a scheduling mixup with the court. If passed, the amendment would effectively codify the Roe trimester framework.
Trend & Policy Watch:
56% Rise in Texas Maternal Mortality: New research from the Gender Equity Policy Institute shows a shocking rise in maternal mortality in Texas following the state’s enactment of abortion bans. From 2019 to 2022, “the rate of maternal mortality cases in Texas rose by 56%, compared with just 11% nationwide during the same time period.” Although there was a national spike in maternal mortality during the COVID-19 pandemic, deaths in Texas continued to rise sharply, surpassing national averages, after the state passed SB8, its notorious pre-Dobbs heartbeat bill. Texas’ abortion ban means that more women are forced to remain pregnant, regardless of pre-existing or developing risks to their health. And, with the bans in place, and doctors leaving ban states en masse, pregnant people are less likely to seek and obtain maternal care. This increase in maternal mortality is accompanied by a rise in fetal and infant deaths, as pregnant people are forced to carry doomed pregnancies to term.
Abortions Fell Nationwide After Florida Enacted Ban: Research from The Guttmacher Institute shows the nationwide impact of Florida’s 6-week abortion ban. Prior to the 6-week ban taking effect, abortion was legal in Florida until 15 weeks, making it a critical access point for abortion seekers in the South. However, following the 6-week law’s enforcement, the average number of abortions nationally fell by over 7%, with more than a third of that being directly correlated to Florida’s ban. In November’s election, Florida could revive access to abortion in the state and reopen a crucial option for pregnant Southerners if its abortion rights ballot measure passes. The initiative requires 60% of the vote to pass into law.
Nevada and Medicare Funding for Abortion: Abortion is currently legal in Nevada until ‘viability;’ however, gestational limits are not the only barriers to accessing care. For many, the ability to pay for an abortion is an insurmountable obstacle. Following a favorable court ruling finding that the denial of coverage violated state equal protection laws, Nevada will now become the 18th state to allow Medicaid funds to be used for abortion care, supporting access for lower-income patients. This is a huge step forward for the bodily autonomy and self-determination of Nevadans.
Pregnancy Criminalization Post-Dobbs: A new report from Pregnancy Justice, an organization that tracks and fights pregnancy criminalization, found that in the first year after Dobbs, 210 pregnant people “faced criminal charges for conduct associated with pregnancy, abortion, pregnancy loss, or birth.” This is the highest number recorded in a single year. The majority of the cases occurred in states with fetal personhood laws on the books and involved substance use while pregnant, regardless of whether any actual evidence of harm to the fetus was present. However, several of the cases also involved the criminalization and investigation of miscarriages that happened outside of a medical setting–an incredibly common occurrence. In addition to opening the doors for states to pass abortion bans and restrictions, the Dobbs decision also appears to have empowered law enforcement and prosecutors to act more boldly in investigating and criminalizing pregnancy outcomes and conduct while pregnant.
Traveling for Abortion Care: For those trapped in abortion-ban states, traveling to obtain care can be a legally and logistically treacherous endeavor. Patients must navigate a complex web of legal restrictions and requirements, while coordinating travel, child care, time off work, and expenses. States are also attempting to restrict the right to travel to obtain lawful healthcare. Idaho and Tennessee have already passed “abortion trafficking” laws that criminalize helping a minor across state lines to obtain an abortion without parental consent (both of those laws are currently blocked by court orders). And, a number of Texas towns have enacted abortion travel bans that make it unlawful to use their roads to travel for abortion care. In practice, these Texas city ordinances, as well as state-level abortion trafficking laws for minors, are likely legally unenforceable, but the fear and intimidation are the point.
Congress and Emergency Abortion Care: This week, Senate Democrats attempted to advance a resolution federally guaranteeing the right to emergency medical care, including abortion, on the heels of reporting about the deadly consequences of abortion bans. However, Senator James Lankford of Oklahoma blocked the efforts, arguing that such a resolution is not necessary. The refusal to entertain legislation that merely protects abortion rights in medical emergencies is dramatically out of step with consistent data on Americans’ opinions about access to abortion.
Threats to IVF: Last week, Senate Republicans once again voted to block a bill that would have created federal protections for IVF. Although anti-abortion activists continue to insist that warnings about legal threats to fertility treatments and contraception are fear-mongering, the refusal to codify basic protections highlights the need for continued vigilance.
RHITES New Resource on Telehealth for Medication Abortion: The Reproductive Health Initiative for Telehealth Equity and Solutions (RHITES) and the National Health Law Program (NHeLP) have released a new map detailing state policies for telehealth medication abortion access for Medicaid enrollees. You can find that resource here.