Legal Changes at the State Level:
Brief Overview:
Oklahoma: This week, the Oklahoma Supreme Court struck down two near-total abortion bans as unconstitutional, ruling that pregnant people have a constitutional “right to terminate a pregnancy to preserve [their] life.” Although this is a positive development, Oklahoma still bans abortion under its pre-Roe 1910 ban.
South Carolina: On May 25, Governor McMaster signed a 6-week abortion ban into law. The law was immediately challenged in state court, and a South Carolina judge halted the implementation of the law, pending litigation. South Carolina’s Supreme Court has now agreed to directly hear the case, bypassing the lower courts and likely expediting a ruling.
Ohio: In Ohio, the state Supreme Court ruled that a ballot initiative aimed at enshrining reproductive rights into the state’s constitution does not need to be split into two separate issues. This means that Ohio Physicians for Reproductive Rights and Ohioans for Reproductive Freedom may continue to gather the signatures needed to get the initiative on the November ballot. A contrary ruling would have forced proponents of the ballot measure to collect twice as many signatures. In anticipation of this ballot initiative, Ohio Republicans have set an August special election to decide whether to raise the threshold needed to pass a constitutional amendment from a simple majority to 60%.
Wisconsin: Wisconsin Republicans have introduced a package of bills that seek to clarify exceptions to the state’s abortion ban. Democratic governor Tony Evers has stated that he would veto the bills, as he supports restoring abortion rights in Wisconsin to what they were before the Dobbs decision.
Tennessee: Tennessee’s amended abortion law has been signed into law.
Texas: Texas is advancing HB17, a bill that allows for the removal of district attorneys who refuse to prosecute certain classifications of cases, including those involving abortion. This move comes after several Texas DAs stated that they would not pursue abortion-related charges in their counties.
Alliance for Hippocratic Medicine v. FDA: In the last edition of this newsletter, we reported on oral arguments in the case challenging the FDA’s approval of mifepristone. At this time, we are still awaiting the Fifth Circuit’s ruling following arguments. In anticipation of that ruling, states like Maryland have begun to stockpile mifepristone.
Deeper Legal Analysis
Oklahoma:
This week, the Oklahoma Supreme Court struck down two of the state’s abortion bans, ruling that they are unconstitutional. Both laws, one total ban, and one 6-week ban, were enforced through private civil lawsuits, similar to the Texas ‘bounty hunter’ provisions of SB8. The justices found that the vaguely defined “medical emergency” exception was insufficient to protect a person’s constitutional right to terminate a pregnancy to save their life. Abortion remains banned in Oklahoma as a result of the still-standing 1910 ban. The 1910 ban makes it unlawful to perform an abortion at any point in the pregnancy, unless it is “necessary to preserve [the person’s] life, and it imposes a threat of prison time for violations.
Earlier this year, the Oklahoma Supreme Court struck down a similar law, which made it unlawful to perform an abortion “except to save the life of a pregnant woman in a medical emergency,” taking issue with the strict interpretation of “medical emergency.” Since the overturning of Roe, Oklahoma has somewhat notoriously had a multitude of intersecting and conflicting abortion bans on the books, creating chaos and uncertainty about how to apply exceptions and definitions. Although this latest decision is only an incremental win, it may provide some clarity and security to physicians by ensuring that they are able to intervene to save the life of their patient without first waiting for the pregnant person to become sicker.
Ohio:
For the past several months in Ohio, abortion advocates have been working to collect signatures for a ballot initiative that, if successful, would enshrine abortion protections into the state constitution. Opponents of this effort attempted to disrupt the process by arguing that the ballot issue should be split into two separate issues: one for abortion, and one for all other reproductive healthcare. This would have required proponents of the ballot issue to effectively start over and collect twice as many signatures. However, on June 1, the state Supreme Court sided with the Ohio Ballot Board over anti-choice groups, finding that the initiative is properly one issue. This frees Ohio Physicians for Reproductive Rights and Ohioans for Reproductive Freedom to continue gathering signatures in support of placing abortion on the November ballot.
If abortion does make it onto the November ballot, Ohio Republicans have passed a proposal that could make it substantially harder for the initiative to ultimately succeed. Lawmakers have set an August special election to decide whether to raise the threshold needed to pass a constitutional amendment from a simple majority to 60%, a move that is, to quote Ohio Secretary of State Frank LaRose, “100% about keeping” abortion out of the Ohio constitution. The nonpartisan coalition ‘One Person One Vote’ has filed a lawsuit challenging the August special election. The group points to the fact that mere months ago, the Ohio General Assembly revised state law to only permit elections in November, March or May. At that time, Secretary LaRose stated that August special elections have low turnout and are bad for taxpayers and voters. Ohio’s attempt to reverse course on that decision in order to thwart an abortion measure is undemocratic and elevates the political platforms of legislators over the voting power of Ohioans.
Unfortunately, Ohio is not the only state attempting to circumvent the democratic process in order to stymie reproductive rights. Missouri’s attorney general continues to delay the finalization of a ballot initiative similarly seeking to enshrine abortion protections into the state constitution. AG Ashcroft is currently refusing to approve the cost estimate for the amendment.
Wisconsin:
In an attempt to further legitimize Wisconsin’s abortion ban, republicans have introduced a package of bills that seek to clarify exceptions to the ban. The first measure would clarify that certain medical procedures do not qualify as abortion, including inducing early labor, performing cesarean sections, and removal of molar or ectopic pregnancies. Another bill would allow parents to claim a tax exemption for unborn children (a fetal personhood law). The third bill would require Wisconsin’s Department of Health Services to provide a grant to Choose Life Wisconsin, Inc., in order to fund “pregnancy resource centers.” The final bill pertains to the provision of state funds to organizations that facilitate adoption. Proponents of the slate of bills have stated that they believe that they “offer an important clarification and reinforce the sanctity of life.” However, Democratic governor Tony Evers has said that he would veto the bills, as he supports restoring abortion rights in Wisconsin to what they were before Roe fell. Like the rest of the country, a majority of Wisconsinites support reproductive rights; accordingly, abortion advocates are skeptical of legislative attempts to lend credibility to the state’s currently enforced ban. A challenge to that ban is headed to the state Supreme Court which, with the election of Janet Protasiewicz earlier this year, will have a 4-3 liberal majority in August.
Texas:
In Texas, lawmakers are advancing HB17, a bill that allows for the removal of DAs who refuse to prosecute certain classifications of cases. Although the bill does not specifically call out abortion, the move comes in response to several Texas DAs stating that they would not pursue cases involving abortion-related charges. This bill, if successful, would interfere with prosecutors’ ability to use their professional judgment to determine whether and how to pursue cases. The legislature does not have the authority to impeach an elected prosecutor; however, they can be removed for official misconduct. Accordingly, in order to effectuate this bill, lawmakers would alter the definition of “official misconduct” to include categorically refusing to prosecute specific criminal offenses. A petition for removal could be filed by anyone who has resided in the county for at least six months, permitting private citizens to bring claims of misconduct against elected DAs.
What else is happening in access?
Illinois is aiming to protect the data of individuals traveling to the state to receive abortion care from out-of-state investigations.
The Missouri attorney general has asked the police to enforce the state’s ban on gender affirming care, despite the law being a civil ban, not within the jurisdiction of law enforcement.
Missouri has launched a new program that allows residents to request free emergency contraceptives.
Plan-b vending machines continue to make their way to college campuses across the country, thanks in large part to the advocacy work done by the American Society for Emergency Contraception (ASEC).
Texas has now become the latest state to ban trans healthcare for minors.
In a surprising turn of events, a federal judge in Florida has issued an injunction halting the enforcement of the state’s ban on gender affirming care. In some particularly striking language, Judge Robert Hinkle stated that “[a]ny proponent of the challenged statute and rules should put up or shut up: do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.”
Issue of the Week: Trans Health and Abortion
Every June, people all over the country and all over the world celebrate Pride month. Pride, which originated as a single day, now serves as a month-long opportunity to commemorate the 1969 Stonewall uprising in New York, an event that galvanized the fight for gay and trans rights, remember and honor those lost to hate crimes and discrimination, and celebrate queer joy and the contributions of LGBTQ+ individuals to our communities. This year, Pride takes on particular significance, as the trans community has faced relentless legislative attacks from the right. In the first half of 2023 alone, nearly 500 anti-trans bills were introduced in state legislatures, including bills discriminating against trans athletes, limiting funding for gender affirming care, restricting the use of pronouns, censoring reading materials that include discussion of sexual orientation or feature gender diverse characters, and dictating which bathroom individuals are permitted to use. Additionally, and perhaps most alarming, 18 states now ban or attempt to ban medically necessary gender affirming care–a stunning intrusion into individual bodily autonomy rights. The fight for trans rights and the fight for reproductive freedom are critically intertwined, but all too often, calls for reproductive rights fall short of acknowledging this intersectionality. This Pride month, let us be reminded that if we are to succeed, it is urgent that advocates stand united.
As reported on in our last edition of this digest, Nebraska recently enacted LB 574, a bill limiting abortion to 12 weeks. However, LB 574 did not start as an abortion bill. It started as a gender affirming care ban, and after republicans failed to pass other abortion restrictions, they tacked the 12-week law onto the bill at the last second and squeezed it through the legislature. It is no accident that conservative lawmakers thought (correctly) that they were politically safe in combining these two issue areas into one discriminatory law. Restrictions on trans health and restrictions on reproductive freedom are rooted in the same effort to control people’s bodies and impose patriarchal, heteronormative and white supremacist norms onto those bodies. Both movements elevate subjective “morality” over the objectivity of medicine, and they do so to the detriment of already marginalized communities.
The trans community has always faced substantial discrimination in health care systems. And the Supreme Court’s decision in Dobbs added new and heightened barriers to obtaining care. Not only does Dobbs restrict the ability of trans people to access reproductive health care, but it places all other privacy rights in jeopardy–a fact that conservative legislators have seized upon in this legislative session. You need look no further than Justice Thomas’s suggestion in Dobbs that the judiciary revisit key precedent protecting LGBTQIA+ rights to understand how truly interconnected these issues are. Nebraska’s new law is just further proof of this relation. Although voices of color and the trans community are at the forefront of the fight for bodily autonomy, those voices are so often minimized or erased entirely from the popular narrative surrounding reproductive freedom. If the opposition is united in their playbook against bodily autonomy, we must be even more aligned in our fight to protect it.
Every person has an equal interest in being able to make private medical decisions in consultation with their doctor and their loved ones. When we look the other way as laws are passed that restrict the ability of a community of people to do so, we not only fail to protect one another from harm, but we allow dangerous precedent to grow and take root–precedent that ultimately impacts the rights of all people. So, this Pride month, please take some time to speak out in defense of the right of all people to be safe and secure in their bodies, elevate historically silenced voices, and empower yourself with a greater understanding of why intersectionality is absolutely crucial to protecting bodily autonomy.
