9/29 - 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: 

  • Ballot Initiatives Across the States: Advocates in Ohio, Arizona, Nevada and Missouri, among other states, are launching or continuing their bids to get abortion on the ballot in their state, in hopes of enshrining reproductive rights into their state’s constitution. 

  • California: In California, Attorney General Rob Bonta has sued a group of anti-abortion counseling centers and an anti-abortion group, arguing that their claims about medication abortion reversal procedures are misleading and medically unproven. 

  • Ohio: On Wednesday, September 27th, the Ohio Supreme Court heard oral arguments in the ongoing challenge to the state’s 6-week abortion ban. The ban is currently blocked by a lower court ruling, but the state has appealed that preliminary order, arguing that the ban should go into effect while the litigation plays out. 

  • Kentucky: Abortion has taken center stage in Kentucky’s gubernatorial race, highlighting how the role of abortion in state-level elections has drastically changed post-Dobbs.
    

Deeper Legal Analysis 

• Ballot Initiatives Across the States: 

  • Advocates in states across the country are mobilizing to get abortion protections before voters in 2023 and 2024. In 2022, states like New York, Vermont, and Michigan voted to amend their constitutions to protect reproductive freedom, and voters in Kansas, Montana, and Kentucky rejected proposed amendments that would have limited abortion rights.  In fact, every single time reproductive rights appeared on the ballot in 2022–they won. Advocates are hoping to build on that momentum and constitutionally protect reproductive health in states across the country. The level of protection in the language of the proposed ballot initiatives varies from state to state, and they are each in different procedural stages; however, their success or failure will serve as a model for other states in the coming months and years. Please note that the states highlighted below are not a  comprehensive list of ongoing ballot initiative efforts. 

    • Ohio: We have reported extensively on developments with the ballot initiative in Ohio, and we are now a matter of weeks away from the vote. As a review, the Ohio reproductive health ballot initiative has faced opposition from anti-choice Republicans at every turn. First, they argued that the proponents of the initiative needed to collect twice as many signatures as is standard. When that effort was unsuccessful, the state held an August special election to try and raise the threshold for passing a constitutional amendment from a simple majority to 60%. Voters themselves shot down that attempt. Advocates were then forced to file another lawsuit after the ballot board returned summary language (the language that voters will actually see in the ballot box) that was materially misleading. Unfortunately, this past week, the Ohio Supreme Court issued a ruling approving the majority of the ballot board’s language. Among other things, this means that the word “fetus” will be changed to “unborn child” in the summary. The Supreme Court did rule that the ballot board must rewrite the summary to change its reference to “citizens of the state” being prohibited from passing laws restricting access, because it is the state government, not the citizens of the state, that will be constrained from doing so. As a reminder, Ohio’s proposed ballot initiative only includes protections until “viability,” with exceptions for the pregnant person’s life or health. Ohioans will vote on the referendum on November 7th. Throughout the long road to this election day, Ohio Republicans have consistently attempted to undermine the ballot initiative, choosing to place their own political agenda over the democratic process. Efforts to subvert direct democracy cannot be allowed to succeed. 

    • Arizona: Arizona for Abortion Access announced that they have begun collecting signatures for a 2024 ballot initiative protecting reproductive health care. The proposed amendment would make abortion a constitutionally protected right, prior to viability. In order to succeed, advocates need to collect almost 400,000 signatures before July 3rd, 2024. As the law currently stands, abortion is legal until 15 weeks in Arizona. 

    • Missouri: In Missouri, advocates are locked in their own battle over the language of an abortion ballot initiative. In a win for reproductive freedom, a Missouri Judge rejected misleading and inflammatory Republican-written summary language that described proposed constitutional amendments as allowing “dangerous and unregulated abortions until live birth.” The same judge also ruled against anti-abortion efforts to argue that the state auditor’s cost estimates were too low, based on their failure to provide any credible evidence to support that argument. Voters will decide the issue in 2024.

    • Nevada: In Nevada, Nevadans for Reproductive Freedom have filed a petition to add pre-viability abortion protections to the state constitution. Nevadans will have to collect just over 100,000 signatures in order to advance the petition. And, it is a long road ahead. If voters approve the ballot initiative in 2024, it would need to appear again on the ballot in 2026 for final approval before passing into law. 

• California:

• California Attorney General Rob Bonta is suing anti-abortion organizations over their abortion-pill reversal claims. AG Bonta’s suit argues that these organizations are advertising medically unproven treatment and misleading vulnerable pregnant people, in violation of the state’s False Advertising and Unfair Competition laws. The groups claim that the effects of mifepristone can be blocked by administering a large dose of progesterone; however, the only clinical trial ever held on the practice had to be stopped after 3 of the 12 women experienced severe bleeding. Fights over abortion pill reversal claims are ongoing across the country, with Colorado attempting to ban the practice for a lack of proven safety, and Kansas attempting to pass a law requiring abortion providers to tell their patients that their medication abortion can be reversed.
  

• Ohio: 

• There is more news out of Ohio this week, as the state’s Supreme Court heard oral arguments on whether to reinstate a ban on abortion after fetal cardiac activity (around 6-weeks). Previously, a lower court judge enjoined enforcement of the ban pending the outcome of the litigation, finding that it was likely unconstitutional. The state’s high court on Wednesday heard oral arguments on 1) whether the state can immediately appeal that judgment in order to have the ban reinstated while litigation plays out; and 2) whether the doctor plaintiffs have standing to bring the claim on behalf of their patients. The Court is currently made up of 4 Republicans and 3 Democrats. Although the court did not clearly indicate which way it would rule, it peppered both sides with questions throughout their arguments, and several of the justices appeared skeptical of the state’s argument that it would be irreparably harmed if the abortion ban was not immediately reinstated. An opinion from the court is likely to come only weeks or days before Ohio voters will determine whether to protect abortion rights in the constitution, as discussed above.
  

• Kentucky: 

• In Kentucky, abortion has taken center stage in the ongoing gubernatorial race, highlighting how the role that abortion plays in state-level politics has dramatically shifted since Dobbs. Kentucky Attorney General and gubernatorial candidate Daniel Cameron indicated last week that, if elected, he would be willing to sign a bill with exceptions for rape or incest if one crossed his desk–a complete reversal of his prior position stance. Previously, Cameron consistently indicated that he would defend the law as it is currently written, with only a narrow exception for the life of the pregnant person. Cameron’s opponent, Democratic Governor Andy Beshear has been aggressive in pushing back on Cameron’s anti-choice positions. His campaign recently released a political ad featuring a young rape survivor and accurately pointing out that the law that Cameron supports would leave her without options for care. Kentucky democrats rarely focused on abortion as a major campaign issue when Roe was still good law, with candidates instead seeking to take a middle ground and avoid the hot-button issue. However, post-Dobbs, voters have made it clear that reproductive health is a key issue for the electorate, and politicians have responded in kind, staking out their positions. 

What else is happening in access? 

• In a truly terrifying must-watch story, the Texas attorney behind the state’s 6-week abortion ban has asked Texas abortion funds for information about every abortion that they have “assisted or facilitated in any way” in the last two years, “including details about the abortion provider, the city and state where the abortion patient lived, as well as the identity of every person,” other than the patient or their family, who assisted in the process. 

• Michigan’s Reproductive Health Act has stalled as a democratic legislator objects to using Medicaid funds for abortion. If passed, the Reproductive Health Act would repeal a host of outdated and medically unnecessary abortion laws in Michigan, such as required waiting periods. It would also ensure that a person’s access to abortion is not dependent on the specifics of their insurance plan. 

• In a piece of fantastic news, a Montana judge has blocked the state’s ban on gender-affirming care for minors, finding that the ban likely discriminates against minors and intrudes on their constitutionally protected privacy rights. 

• North Dakota families are challenging the state’s ban on gender-affirming care for minors. 

• House Republicans have introduced a bill to ban medication abortion nationwide. 

• Poland has created a laboratory test capable of detecting whether a person has taken abortion pills. The test has purportedly already been used in investigations into pregnancy outcomes. This technology could easily be adopted in other countries, and Americans should be aware of this looming possibility. 

• We all know how interconnected the fights for abortion rights and gender-affirming care are, but if you need any more evidence–just take a look at how the opposition treats the two issues. For more perspective on the cross-pollination between these movements, take a few moments for this must-read piece from the New York Times.  

• As we reported in the last digest, Planned Parenthood has resumed providing abortion services in certain Wisconsin clinics for the first time in over a year. Anti-abortion groups are calling on the District Attorneys in those counties to put a stop to it, despite the D.A.'s pledges to not prosecute cases under the 1849 abortion law that the pro-life groups rely on for their argument against access. 

• On September 21st, the Fourth Circuit Court of Appeals heard oral arguments on the question of whether insurance providers must provide coverage for gender-affirming care. The panel of judges, 8 of whom were appointed by Democrats and 6 by Republicans, did not indicate at oral argument which way they will likely rule.
  

Issue of the Week: Pregnancy Criminalization

This week’s Issue of the Week is guest-written by Mahathi Vemireddy, the Knighton-Newman Legal Fellow at Pregnancy Justice. Pregnancy Justice is the nation’s leading advocacy organization in the fight against pregnancy criminalization. 

In the United States, pregnant people face a unique set of obstacles: they may experience discrimination in the workplace, difficulty accessing prenatal care, and biased medical systems and providers that contribute to high maternal mortality rates. In recent years, the Supreme Court and several states have gone even further to make pregnancy more precarious for millions of Americans by revoking their fundamental right to make decisions about their pregnancies and their own bodies. While abortion restrictions have been prominently reported, a lesser-known but troubling danger many pregnant people face is the looming threat of pregnancy criminalization. Pregnancy criminalization occurs when a person is charged with alleged crimes arising from their actions or omissions during pregnancy or for their pregnancy outcomes. These types of criminal prosecutions have already occurred in the United States, but the number of cases will likely increase in a post-Dobbs America. 

Pregnancy criminalization first became widespread in the 1980s amid the disastrous and racist  “crack baby epidemic.” This unsupported moral panic armed the anti-abortion proponents with a false narrative that played on racist, sexist, and classist tropes that villainized Black women and poor people. Unfortunately, this rhetoric continues today and has essentially normalized the scheme to criminalize pregnant people despite every leading national health organization condemning the practice. Black women were overwhelmingly the victims of pregnancy criminalization in the first several decades after Roe.

Just this month, Pregnancy Justice released a report documenting cases of pregnancy criminalization from January 2006 until the Dobbs ruling in June 2022. Over this period, we identified 1,396 cases. This represents a startling increase compared to the 2013 Pregnancy Justice study which reported 413 cases between 1973 to 2005. There have been over three times as many cases in half as many years. While cases were tracked in 46 states, the vast majority of cases occurred in just five states: Alabama, South Carolina, Oklahoma, Mississippi, and Tennessee. Moreover, more than 9 in 10 cases involved allegations of the co-occurrence of pregnancy and substance use. 

State actors have increasingly penalized pregnant people through an alarming combination of carceral approaches to substance use and the spread of fetal personhood laws. Fetal personhood is the radical and false belief that an unborn fetus should have equal legal rights and protections to a living person. Moreover, fetal personhood laws are often interpreted to pit the interests and rights of the pregnant person and fetus as staunchly opposed. This leads to depriving pregnant people of their own liberties and autonomy in favor of a fetus. 

Notably, the charges a pregnant person might face range from child neglect to endangerment to manslaughter to homicide. Local prosecutors sometimes use homicide statutes to criminally prosecute pregnant people for experiencing pregnancy loss. Importantly, there is very little a pregnant woman can do, including use illicit substances, to cause a pregnancy loss. Prosecutors may also criminalize pregnant people and parents under child abuse and neglect laws for their actions or omissions during pregnancy. These cases frequently rely on a misconception that in-utero substance exposure to the fetus during pregnancy causes substantial harm to the child post-birth. Our report finds that one in three cases was first instigated by a medical professional, and two in five involved family regulation workers. 

The threat of prosecution and criminalization also prevents pregnant people from actively seeking necessary medical care, including perinatal services and substance use treatment. While all pregnant people are vulnerable to these statutes, low-income women and people of color are particularly harmed, further driving disparities in access to care and treatment. The states’ use of prosecution and punishment does not address the underlying public health needs of pregnant people and people with substance use disorders. To move forward, advocates need to understand how pregnancy criminalization, the war on drugs, and the country’s maternal health crisis are all interconnected public health concerns and require coordinated strategies to address the issues facing each impacted community.

There are many ways to challenge pregnancy criminalization and prevent future cases including: (1) providing zealous legal advocacy for pregnant people and making use of medical experts and scientific evidence in their defense; (2) increasing public understanding of the realities of pregnancy and substance use;  (3) repealing and preventing fetal personhood legislation in your state; (4) organizing to enshrine full legal rights and protections for pregnant people in state and federal law; and (5) dismantling and decoupling the healthcare system from the policing and surveillance of poor communities and communities of color.

Pregnancy Justice works with defense attorneys, medical experts, and advocates to provide free legal assistance for those facing charges stemming from their pregnancy outcome and/or their actions or omissions during their pregnancy. We also engage in policy advocacy, coalition building, public education campaigns, and track and document cases to advocate on behalf of pregnant people and their families. If you need assistance with a case or would like to get involved, please contact us.