Developments in Abortion, Autonomy, and Access:
Rapid legal developments in abortion, autonomy, and access to health care continue to change the landscape of the law on a weekly basis. As many states near the end of their legislative sessions and the dust settles, we will have a clearer picture of where access remains, where it has been eliminated entirely, and where it is limited or in the line of fire. These past two weeks have brought a slew of legislative changes or attempted changes, and the lawsuit challenging nationwide access to mifepristone continues before the Fifth Circuit Court of Appeals. Please read on for a summary of key developments:
Legal Changes at the State Level:
Brief Overview:
Idaho: Idaho’s “abortion trafficking” bill is officially operative law.
Nebraska: Nebraska continues to attempt to pass more restrictive abortion laws, rushing to pass a 12-week ban mere weeks after a 6-week ban failed.
South Carolina: South Carolina once again rushed to advance a 6-week abortion ban prior to the close of the state legislative session on May 11, after several failed attempts at passing restrictive legislation. Their legislative session will reconvene for overtime.
North Carolina: North Carolina’s legislature is advancing its attempt to pass SB20, a 12-week abortion ban. Although the governor has vowed to veto the law, republicans hold a veto-proof majority.
Tennessee: Tennessee’s amended abortion law has been signed into law.
Louisiana: Louisiana has rejected legislation that would have added exceptions for victims of rape or incest, despite testimony from rape victims in favor of the legislation.
Vermont, Minnesota, Oregon, and Washington have all passed or are working to pass protective legislation for abortion rights, gender-affirming care, or both.
Deeper Legal Analysis
Idaho:
Idaho’s “abortion trafficking” bill, passed in April and discussed in the last digest, went into effect last Friday, making it criminal “trafficking” to assist a minor in obtaining an out-of-state abortion without their parent’s consent. This is the first law of its kind, but it is unlikely to be the last, and it exemplifies the role that the right to interstate travel will play in a post-Roe world. Although Idaho’s is the only law to use trafficking language thus far, other states are similarly attempting to extend their influence beyond their own state borders, an effort that pro-choice states have met with attempts to pass shield laws that protect providers and patients from out-of-state investigations. As U.C. Davis legal historian Mary Ziegler put it “if red states pass laws saying, ‘We can go after people for X, Y and Z,’ and blue states say “you can’t,’ we’re in uncharted territory. These interjurisdictional conflicts will be something to watch in the coming months and years.
If you are curious about how the effects of restrictions like these play out, take a few moments to listen to two women describe their inability to access necessary medical care after being diagnosed with life-threatening conditions during their pregnancies. Even in states, like Florida, where the existing abortion bans carve out exceptions for lethal fetal anomalies and to save the life of the mother, physicians are forced to grapple with legal uncertainty in their provision of care.
Nebraska:
Nebraska continues its attempts to further restrict abortion access, as a new legislative effort that would restrict abortion to the first 12 weeks of pregnancy was introduced late Monday. This latest attempt comes less than two weeks after a 6-week abortion ban failed to overcome a filibuster by a single vote. Advocates hoped that after the 6-week ban failed to pass into law, the question of abortion access in Nebraska would be settled for this legislative session; however, that may not be the case. The latest anti-abortion attempt has been added as an amendment to a bill calling for a ban on gender-affirming care for youth in the state. The newly proposed law includes exceptions for rape, incest, or medical emergencies.
South Carolina:
In South Carolina, legislators once again rushedto advance a 6-week abortion ban prior to the close of the state legislative session on May 11; however, their Governor has signaled his intent to call legislators back for an overtime session. This move comes about a week after another attempt to pass a near total ban failed, thanks in large part to the filibuster efforts of the so-called “sister senators,” a group of 5 female legislators made up of 3 republicans, a Democrat, and an independent. That failed bill would have banned abortion at conception, with only narrow exceptions for rape or incest in the first trimester, fatal fetal anomalies that were confirmed by two physicians, and abortions necessary to preserve the pregnant person’s life or health. One of the “sister senators,” Republican Penry Gustafson stated that she participated in the filibuster despite her “pro-life” beliefs, because the proposed bills left “no room for empathy, reality or graciousness.” A previous, but very similar, 6-week ban was ruled unconstitutional by the state Supreme Court earlier this year on privacy grounds.
North Carolina:
North Carolina continues to make progress in attempting to pass SB20, a 12-week abortion ban. Governor Roy Cooper has vowed to veto the law; however, North Carolina Republicans currently hold a veto-proof majority. North Carolina needs only one Republican lawmaker to flip their vote in order to block the bill from passing into law, and advocates hope to use the coming days to persuade legislators to do so. North Carolina currently permits abortion until 20 weeks gestational age, and has become a bastion of access in the South, where many neighboring states have passed highly restrictive laws and bans. Abortion in North Carolina has increased more than any other state since the fall of Roe, reflecting the many patients who have flocked to the state to receive care; the passage of this bill would devastate that access point.
Tennessee:
Tennessee’s law, as discussed in the last edition of this digest, has now been signed into law by the governor. The new law replaces the prior affirmative defense language with exception language, a move that facially loosens the abortion ban without functionally increasing access to care.
Alliance for Hippocratic Medicine v. FDA:
In our last digest, we discussed the federal challenge to the FDA’s approval of mifepristone, one of two medication abortion drugs. At this time, briefing has been submitted to the Fifth Circuit Court of Appeals by both parties, and oral arguments are set for May 17. The Fifth Circuit will determine whether Judge Matthew Kascmaryk erred in ordering a stay of the FDA’s 2000 approval of the drug for medication abortions.
Additionally, in a bid to preserve access to the abortion pill, another lawsuit has been filed by abortion providers in Kansas, Virginia, and Montana, seeking to preserve the status quo of mifepristone availability. This new lawsuit seeks similar relief to that ordered in the Washington state decision.
Vermont, Minnesota, Oregon, and Washington pass protective legislation:
Blue states continue to try and pass protective legislation aimed at safeguarding out-of-state patients and their providers from the reach of states that restrict access.
Washington has adopted the “My Health, My Data Act”, a “first of its kind” data privacy law that safeguards consumer health data and location data held by sources like telehealth platforms and period-tracking apps.
Minnesota Governor Tim Walz signed three bills into law last Thursday. Together, these bills aim to protect abortion access, ban conversion therapy and preserve access to gender-affirming care for transgender youth. These laws go into effect immediately.
Vermont, a strong support state for reproductive and LGBTQ+ rights, signed new “shield laws” protecting Vermont doctors from out-of-state investigations and professional discipline for providing reproductive and gender-affirming care. H.89 shields doctors in cases where an out-of-state investigator seeks to prosecute a patient who received care in Vermont. The Senate’s companion bill, S.37 protects medical licenses for Vermont doctors and guards against medical malpractice insurance rate hikes for providers. Unfortunately, Vermont “can only shield doctors and patients so long as they remain in state lines.”
Oregon lawmakers continue to advance measures aimed at protecting providers and patients giving or receiving reproductive or gender-affirming health care.
What else is happening in access?
First, a new poll reaffirms that an easy majority of Americans support the right to abortion, including in states where their own legislatures attempt to ban it.
In Michigan, SB 147 has passed both chambers of the legislature; this bill would ban employment discrimination on the basis of having had an abortion, a relatively novel strategy to protect abortion rights.
A panel of FDA advisers has recommended approving an over-the-counter birth control, which would increase ease of access to contraceptive care.
Pro-choice Floridians are mobilizing to get a measure that would protect abortion on the 2024 Florida ballot; the groups aim to protect abortion until the point of viability.
Two hospitals, one in Kansas and one in Missouri, are under federal investigation for failing to provide emergency life-saving care to a pregnant woman who required an abortion. This comes as a strong reminder that, regardless of state law, providers are obligated under the Emergency Medical Treatment and Labor Act (EMTALA) to provide care to any patient in an emergency situation.
A recent Texas case illustrates how restrictive abortion laws exacerbate harms to victims of domestic violence and coercive abuse.
Issue of the Week: Abortion Exceptions and Why They Don’t Work
It is an obvious proposition that parents possess certain rights, responsibilities, and obligations with respect to the care of their children. However, in the context of reproductive rights and gender-affirming care (among other issues), parental rights are all too often used as a sword rather than a shield.
The majority of states require at least some level of parental notification or consent prior to a minor obtaining an abortion, with some states requiring the involvement or consent of both parents. Although most minors do consult with their parents about an unintended pregnancy, notification and consent laws that mandate parental involvement remove decision-making power from the hands of the most impacted party: the pregnant person. These laws force pregnant minors who cannot safely obtain consent to face what can be a terrifying situation alone and to overcome unnecessary barriers to safe medical care. Although judicial bypass procedures, procedures by which the minor can petition the court for the right to have an abortion, exist for circumstances where a minor cannot notify their parents safely or obtain consent, these processes can be difficult to navigate and are subject to the whims of the courts. For example, one Florida judge denied a pregnant minor an abortion based on her grade point average. And regardless, judicial bypass procedures still involve an external person in the private and medical decision about whether to carry a pregnancy to term, diminishing the minor’s agency over their own life-altering choices. Certainly, the ideal circumstance is one in which a minor experiencing an unintended pregnancy is able to obtain information and support from a compassionate parent or guardian, but this is not the reality for many households. Our laws need to engage with this reality. Although parents have responsibilities over their children, minors have rights over their own bodies. Indeed, this value is emphatically enshrined in norms of international law.
Parental rights are also asserted by Republican lawmakers in other legislative contexts, including those implicating lbgtq+ rights. For example, in what has come to be known as a “don’t say gay” bill, Florida attempts to restrict conversations about gender identity or sexual orientation in the classroom. Advocates for the bill say it is about parental rights over their child’s education, but detractors argue that it is about discrimination and state-sponsored censorship targeting particular groups of people. Other states attempt to pass “forced outing” bills in the name of parental rights, requiring parental notification if a child expresses doubt about their sexual or gender identity. Of course, these arguments about parental rights conveniently disregard a parent’s right to support their child’s gender identity and altogether ignore governmental efforts to penalize parents who do so. Again, in an ideal scenario, all children would be able to safely discuss their experiences with their identity and orientation with a supportive guardian, but we know that this is not reality. A political agenda that pushes an inaccurate narrative of “parental rights” over the reality of the safety and well-being of children is something worth guarding against.
