REPRODUCTIVE HEALTH DIGEST (7/21/23)

Developments in Abortion, Autonomy, and Access: 

In the past two weeks, legal changes to abortion, autonomy and health care access have unfolded at both the state and federal level. These developments include the passage of Iowa’s new 6-week abortion ban, the FDA’s approval of an over the counter birth control pill, and ongoing legal battles over the right to gender-affirming care. This week’s digest also has a great deal to report in its “more news in access” section, as concrete changes to the law slow down with the close of state legislative sessions but litigation and policy efforts continue. With today’s digest, we are also kicking off an “issue of the week” series highlighting strategies that are being used to push back against abortion bans, with our first post being guest-written by L4GG intern Veronica Dickstein.

Please read on for more detail and discussion.

Legal Changes at the State Level: 

• Brief Overview: 

• Iowa: In a single-day special legislative session called for the “sole purpose” of passing anti-abortion restrictions, Iowa pushed through a renewed 6-week abortion ban. The ban was immediately subject to legal challenge, and although it briefly took effect, a judge issued a temporary injunction halting its enforcement on Monday, July 17.

• Connecticut: Connecticut Governor Ned Lamont has signed additional protections for reproductive health care into law, protecting both providers and patients.

• Idaho: Groups have filed a lawsuit challenging Idaho’s abortion trafficking law, arguing that it violates their right to interstate travel, as well as their First Amendment rights to speak and engage in expressive conduct.

• FDA: On the federal level, the FDA has approved an over-the-counter birth control pill for the first time.
  

Deeper Legal Analysis 

• Iowa: 

  • In a single-day special legislative session called for the “sole purpose” of passing anti-abortion restrictions, Iowa pushed through a renewed 6-week abortion ban, despite polling that clearly reflects Iowans’ support for abortion rights.  The ban was immediately subject to legal challenge. Although it briefly took effect, a judge issued a temporary injunction halting its enforcement on Monday July 17, preserving access to abortion until 20 weeks gestational age for the time being. The bill  bans abortions after the sixth week of pregnancy, based on the detection of a “fetal heartbeat.” It is nearly identical to a 2018 law that the state Supreme Court has declined to reinstate, prompting Governor Reynolds' renewed attempt at circumventing that judicial deadlock by enacting this new ban. If this legislative maneuvering sounds familiar, it's because it is. Other states, like South Carolina, have likewise responded to courts’ blocking of abortion bans by simply passing functionally identical new laws. 

  • The latest Iowa ban includes exceptions for vaguely defined “medical emergencies” throughout the pregnancy. It also contains exceptions until 20 weeks for cases involving fetal anomalies that are deemed “incompatible with life,” rape (if reported within 45 days) and incest (if reported within 140 days). As we have discussed many times in this digest, we know that requirements that victims of rape or incest report those crimes are cruel, medically unnecessary, and impose barriers to safely accessing health care. They are also inconsistent with research that shows that many victims are unwilling or unable to safely report the crime. Although we have seen the consequences of bans just like this one in the year since Dobbs, Republicans continue to go to extraordinary lengths to enact them, placing patients, providers and our entire democratic process at risk.
    

• Connecticut:

• Connecticut Governor Lamont signed additional protections for reproductive health care into law. The series of bills were approved by the Connecticut general assembly prior to the end of the legislative session, and, in the Governor’s words, they are enacted to “safeguard the rights of all persons in Connecticut to access an abortion and the contraceptive care they choose.” As other states restrict reproductive rights, laws like Connecticut’s are aimed at preserving them. The new laws create the following protections:

  • Public Act 22-128 protects medical providers from adverse actions taken by another state based on the provision of legal and competent reproductive health care services. The protections are designed to cover provision of care to individuals traveling to Connecticut from other states where abortion is illegal. The law protects providers from suspension, revocation or denial of licensure based on their provision of that care. 

  • Public Act 23-52 allows pharmacists to prescribe birth control without first requiring the patient to have an appointment with their physician. This law is aimed at increasing access to contraception, particularly in rural and remote areas where reproductive health care is limited. 

  • Public Act 23-41 increases access to reproductive care for college students at public institutions by requiring the institutions to develop a plan by January 1, 2024 that addresses student needs for contraception, abortion and gender-affirming care. The goal of this law is to increase access for students who live on campus and rely on their educational institutions for living necessities including food, housing, transportation, and health care needs. 

  • Public Act 23-56 aims to protect the data privacy of patients by establishing restrictions on the collection, sharing and selling of personal health data by business and service providers who use online platforms. Although the law uses broad healthcare language, it also explicitly protects reproductive rights. Protection of patient data is key in safeguarding against investigations into legally provided health care.
    

• Idaho 

• Groups have sued to challenge Idaho’s abortion trafficking law, arguing that it violates their right to interstate travel, as well as their First Amendment rights to free speech and expression. This challenge is a crucial one to watch, as its success or failure will  inform whether other states enact similar “abortion trafficking” legislation. As a reminder, Idaho’s law defines assisting a minor across state lines to receive an abortion without their parent or guardian’s consent as “trafficking.” Any adult who is prosecuted under the law faces the prospect of 2-5 years in prison. The language of the law is broad and ambiguous, and what might constitute a parent’s “consent” is unclear; this lack of clarity is purposeful and will ultimately “deter ever more conduct because people don’t know where the line is.” 

• The Department of Homeland Security explains that “human trafficking involves the use of force, fraud or coercion to obtain some type of labor or commercial sex act.” The conduct criminalized by Idaho’s law does not come close to resembling any accepted definition of “trafficking.” Under the law’s express terms, if a minor becomes pregnant, determines that they want an abortion and asks a trusted adult for help in safely obtaining that abortion, the adult could find themselves facing a prison sentence of up to 5 years. The minor’s consent to the abortion is not a defense to the law. Because courts are generally more willing to allow restrictions on the rights of minors, Republicans across the country have strategically cloaked restrictive laws in a false narrative about preserving parental rights and protecting children.
  

• FDA: 

• On the federal level, the FDA has approved the first over the counter birth control pill, a move lauded by reproductive rights advocates as concern grows about access to contraception becoming a renewed target of republican attacks. The medication, marketed as Opill, was first approved for prescription usage over 50 years ago, and the FDA has determined that it is both safe and effective in preventing pregnancy. The drug is expected to become available at pharmacies across the country in early 2024, although the cost is not yet known. Additionally, a growing number of states are allowing pharmacists to prescribe birth control, removing the obstacle of requiring the patient to have a physician visit prior to obtaining medication. According to The Guttmacher Institute, 24 states and the District of Columbia currently allow pharmacists to prescribe birth control. Although access to contraception, including birth control pills, is an important part of reproductive freedom, it does not eliminate the need for safe and legal abortion. Not everyone has access to contraception. Not every sexual encounter is consensual. No contraceptive works 100% of the time, even when used correctly. Not all wanted pregnancies are viable. Each of these realities (and countless others) mean that, although the FDA’s approval of this medication for over-the-counter use is certainly progress, it is no substitute for abortion rights.
  

What else is happening in access? 

• A single Republican Senator, Tommy Tuberville of Alabama, is blocking approximately 265 military officer nominations, citing his disapproval of the Pentagon’s policy of supporting service members and their families in seeking abortion care. Seven former defense secretaries have criticized this move and expressed concerns that it harms military readiness and national security. Senator Tuberville’s stonewalling of the nominations comes as contentious legislative debates continue over the question of military spending and abortion. 

• The U.S. Court of Appeals for the Sixth Circuit has reinstated Tennessee’s ban on gender affirming care for minors while the litigation challenging the ban plays out. This was the first time a federal court allowed a gender affirming care ban to take effect, and the Court’s opinion cited Dobbs (the case that overturned Roe) as supporting authority. Any expansion of Dobbs to limit other privacy rights should be a cause for great concern. You can read more about the relationship between the fight for trans rights and the fight for reproductive rights here. 

• Approximately a week after the Sixth Circuit’s opinion came out, a federal judge lifted the injunction on Kentucky’s ban on gender affirming care, allowing it to take effect, 

• State laws banning gender affirming care for minors are forcing trans youth and their families to uproot their lives and leave their own communities in order to seek gender affirming healthcare in other states. You can read some of their stories here. 

• Litigants in Texas are suing for clarification to the state’s total abortion ban; these women went to court this week and provided moving testimony about their experiences trying to access necessary health care under the unclear and medically ambiguous terms of the ban. 

• A Nebraska judge heard oral arguments this week in the ACLU’s case challenging the state’s combined gender-affirming care and abortion ban. No ruling has been issued at this time. 

• A relatively small Christian conservative group is making headway in its efforts to promote its agenda at the local level. The group has organized around support for things like limitations on sex education in school, banning books that discuss subjects like abortion or gender identity, and limiting diversity and inclusion efforts. 

• Abortion advocacy group “Plan C” explains how patients can access abortion pills in every state.

• Australia is set to ease restrictions on medication abortion, citing the need to improve accessibility for remote and rural communities.

Issue of the Week: Freedom of Religion and Abortion

This week’s “Issue of the Week” kicks off a series focusing on the different strategies being used to protect reproductive freedom; it has been guest written by L4GG intern Veronica Dickstein.

In the wake of recent disheartening SCOTUS decisions and the erosion of reproductive rights in many U.S. states, it can be difficult to  see the positive developments and progress made  that provide hope for the future. Yet, across the country, attorneys and advocates are using creative strategies to protect bodily autonomy in a post-Dobbs legal landscape.

One particularly compelling argument is currently being made in Florida, Kentucky, Missouri, and Indiana. Plaintiffs in each of these states argue that abortion bans restrict their religious freedom and are therefore unconstitutional or in violation of their state’s Religious Freedom Restoration Acts. This strategy is especially interesting, as anti-choice advocates have historically claimed religion as their own and positioned it as diametrically opposed to abortion rights. However, like any aspect of religion, beliefs about abortion are not a monolith–they vary greatly between faith traditions and the views of the individuals who follow them. 

The following cases make this argument in court, arguing that the plaintiffs’ ability to freely exercise their religious beliefs must include access to reproductive freedom:

• Florida - Generation to Generation v. State of Florida

  • The Plaintiffs in this case are suing the State of Florida, contending that the Reducing Fetal and Infant Mortality Act is unconstitutional.They argue that because Jewish law states that “abortion is required if necessary to protect the health, mental or physical, or well-being of the woman,” and Florida’s law does not allow for abortion in all of these circumstances, the act unconstitutionally violates the plaintiffs’ freedom of religion.

  • This case is ongoing.

• Kentucky

  • The Plaintiffs in this case filed suit against Kentucky Attorney General Daniel Cameron and Jefferson County Attorney General Thomas Wine.

  • This case draws on Kentucky’s Religious Freedom Restoration Act, which states that “no preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity.” 

  • Plaintiffs argue that the bill’s declaration that life begins at conception conflicts with commonly held Jewish beliefs, and therefore violates their religious freedom. They also claim that the law’s abortion restrictions give preferential treatment to those with Christian beliefs and are, therefore discriminatory.

  • This case is ongoing. 

• Missouri - Rev. Blackmon v. Missouri 

  • Missouri’s abortion ban was described by state legislators in explicitly religious terms. Missouri Representative Adam Schnelting said the following when discussing the ban: “I know of no greater way of affirming the natural rights of man than to declare that they are a gift from our Creator that neither man nor government can abridge.” The Plaintiffs in this case argue  that this faith-based justification for the ban  is a violation of the separation of church and state, something clearly protected in Missouri’s Constitution. Like the Florida and Kentucky plaintiffs, the Missouri Plaintiffs also argue that  this ban forces all Missouri residents to adhere to a definition of life only held by some specific sects of Christianity. The 13 Plaintiffs, all religious clergy members belonging to different Christian sects, Unitarian Universalism, and Judaism, do not share those religious beliefs.

  • This case is ongoing.

• Indiana - Anonymous Plaintiffs, Hoosier Jews for Choice v. Medical Licensing Board of Indiana

  • As mentioned in L4GG’s 7/07/23 repro digest, this case argues that Indiana’s abortion ban infringes on  the religious freedom of the Jewish, Muslim, and spiritual plaintiffs, in violation of Indiana’s Religious Freedom Restoration Act. The plaintiffs’ respective religions do not ascribe to the belief that life begins at conception or that a fetus is entitled to the same rights as a born child. Like other cases, this one argues that Indiana’s constitutional clause prohibiting the state from giving one religion preferential treatment over another is violated by the state's extreme abortion ban.

  • This case is especially important because the plaintiffs were granted a preliminary injunction by Indiana state trial court in December 2022. The state has appealed this injunction and Americans United along with other organizations filed an amicus brief arguing that the injunction should hold. Although there is no clear outcome for this case at this time it demonstrates that courts even in states hostile towards reproductive rights and bodily autonomy may respond favorably to a religious-freedom-oriented argument. 

  • This case is ongoing.

Using religion to combat abortion bans is ingenious, because it is so often weaponized to create and promote them. This irony is compounded in the cases that use their states’ Religious Freedom Restoration Acts, as these same acts are sometimes used to discriminate against LGBTQ+ people, something fighting abortion bans helps combat. Contrary to the recent abortion bans that often, whether explicitly or implicitly, use Christianity as an excuse for restrictive legislation, religion in America is not monolithic. These cases serve as beacons of hope in tough times for reproductive rights in America, using religious diversity as a shield to protect our democracy, rather than a sword to cut it down. 

REPRODUCTIVE HEALTH DIGEST (7/7/23)

Developments in Abortion, Autonomy, and Access: 

Rapid developments in abortion, autonomy, and access to health care continue to shape the legal landscape in the U.S. In the past two weeks, significant changes have occurred. Both North Carolina and Indiana received the green light from their respective supreme courts to further restrict abortion access. Iowa and Ohio are both engaged in efforts to subvert direct democracy. South Carolina heard oral arguments in the case challenging a fetal heartbeat law, and Texas quietly passed new abortion ‘clarifications.’ Additionally, advocates continue to push back against the legality of bans on gender-affirming care for minors, and Republican lawmakers continue their attempts to restrict that care. Please read on for more detail and discussion. 

Legal Changes at the State Level: 

• Brief Overview: 

• North Carolina: In North Carolina, a twelve-week abortion ban with limited exceptions for rape, fetal anomaly, and life or health of the pregnant person has gone into effect, over legal objection. The text of the ban was subject to several last-minute changes that seemed aimed at eliminating the lawsuit challenging the law. 

• Indiana: The Indiana Supreme Court has issued a ruling clearing the way for the state’s near-total abortion ban to go into effect. 

• South Carolina: Last week, the South Carolina Supreme Court heard oral arguments in the case challenging the state’s renewed ban on abortion after fetal cardiac activity is detected (a “6-week ban”). 

• Iowa: Iowa Governor Kim Reynolds has called for a special legislative session devoted to enacting “pro-life legislation.” This announcement comes after the Iowa Supreme Court issued a split ruling that continued to block Governor Reynolds’ 6-week abortion ban from going into effect. 

• Ohio: Ohioans have successfully obtained enough signatures to get an amendment that would create constitutional protection for abortion onto the ballot in November.
  

Deeper Legal Analysis 

• North Carolina: 

  • North Carolina has implemented a twelve-week abortion ban, with limited exceptions for rape or incest, lethal fetal anomaly and the life or health of the pregnant person. The law, which was passed over Democratic Governor Roy Cooper’s veto, went into effect on July 1st. Planned Parenthood South Atlantic and a physician who performs abortions have brought a lawsuit challenging the law, arguing that it is unworkably vague and contradictory. However, the courts allowed the law to go into effect while that litigation plays out, only temporarily blocking one small provision of the law which required abortion providers to document the “location of the pregnancy” in the body prior to performing the abortion. Notably, just days before the law’s effective date, North Carolina Republicans rolled out new ‘clarifications’ that seemed designed to address several of the specific complaints listed in the lawsuit challenging the ban. The revisions to the law clarify that medication abortion is lawful until 12 weeks of pregnancy, not ten weeks, as the previous text of the law indicated. The new bill also purports to make clear that it is not a violation of the law to help a pregnant person obtain a lawful abortion in another jurisdiction. As we have previously written about in this digest, although proponents of North Carolina’s 12-week ban have touted it as a moderate regulation, it contains many medically unnecessary provisions that restrict access to care, including stringent requirements for in-person visits with the performing physician. Litigation challenging the law will continue, but in the meantime, North Carolina has lost its status as a safe haven for reproductive rights in the South. 
    

• Indiana: 

• In Indiana, the state Supreme Court has issued a ruling clearing the way for the state's near-total abortion ban to go into effect. The Court’s ruling overturned a county judge’s previous determination that the ban likely violated the state constitution’s privacy protections. In their order, the justices found that the legislature has broad discretion to regulate the conditions under which abortion may be performed in the state. 

• Indiana’s new law is uniquely harsh. It bans abortion entirely, with only narrow exceptions for rape or incest until ten weeks post-fertilization, cases of lethal fetal anomaly, and circumstances where the mother’s life is at risk. It also contains a number of “TRAP” laws, such as requiring abortions to be done only in certain hospitals. It imposes harsh penalties on providers who are found to be in violation of the law, including up to six years in prison. The total ban has not yet gone into effect; however, the Supreme Court’s ruling paves the way for it to become operative law in the coming weeks. Further complicating the matter, an Indiana court in a separate case temporarily halted implementation of the ban in December for patients who say that the abortion ban violates their sincerely held religious beliefs, protected by the state’s religious freedom act. That injunction remains effective, despite the state Supreme Court’s ruling. 
  

• South Carolina: 

• On June 27, 2023, the all-male South Carolina Supreme Court heard oral arguments in the case challenging the state’s fetal heartbeat ban. As reported previously, the law was signed by Governor McMaster on May 25, and within 24 hours, Planned Parenthood filed a request for an injunction and a state court judge granted it, halting implementation of the law during the pendency of the litigation. In addition to challenging the law’s constitutionality, Planned Parenthood’s lawyers argue that the new law is functionally identical to the 6-week ban that the Court struck down as unconstitutional in January of this year. The state’s lawyers argued that the new law is substantively different in ways that cure the Court’s concerns with the previous 6-week ban, while Planned Parenthood maintained that, although some language may have changed, the effect of the law is the very same as before. During arguments, lawyers from both sides faced significant questioning, with a heavy emphasis on exactly how the law is meaningfully different and whether or not a ban on abortion after detection of fetal cardiac activity gives pregnant people enough time to discover the pregnancy and decide whether or not to continue it. The Court has not yet issued its ruling.
  

• Ohio: 

• In Ohio, advocates have successfully obtained enough signatures to get a constitutional amendment protecting abortion in front of voters in November. This success is the latest in a hard-fought battle to get abortion onto the ballot. Previously, Republicans in the state unsuccessfully tried to argue that abortion is separate from other reproductive rights that the ballot measure addresses, and therefore proponents of the ballot measure must collect twice as many signatures as planned. That argument was struck down. Further, the state legislature has successfully called for an August special election to determine whether to raise the threshold needed to pass a constitutional amendment from a simple majority to 60%. This move is a blatant attempt to block the passage of abortion protections, and polling shows that Ohio's support for a constitutional amendment sits at about 59% currently. This kind of political maneuvering disempowers voters and weakens direct democracy, and it cannot go unchallenged. 
  

What else is happening in access? 

• The Texas legislature has quietly passed a new bill that creates an affirmative defense to the state’s abortion ban for cases of ectopic pregnancy or preterm premature rupture of membranes (PPROM). This move likely comes in response to public outcry over the many stories coming out of the state detailing ways in which pregnant people’s medical care has suffered under the Texas law. The bill will take effect on September 1. 

• Republicans are quick to compare their proposed abortion bans to those found in Europe, making the case that the proposals are internationally mainstream; this piece does an excellent job of eviscerating that argument. 

• As we have reported on previously, Idaho has passed an abortion trafficking law, defining assisting a minor over state lines to obtain an abortion as “trafficking.” Legislation like this not only creates barriers to reproductive care but harms victims of actual human trafficking. 

• North Carolina has approved restrictions on gender-affirming care for minors; it is likely to override the anticipated veto by Democratic Governor Roy Cooper. 

• Advocates are beginning to turn the tide in the fight for trans rights, with many favorable rulings coming out of state courts. This is a reminder that this fight is winnable–we just need to fight. 

• In Kentucky, plaintiffs have dropped their lawsuit challenging the state’s abortion restrictions, based on the court’s requirement of a patient as a plaintiff; however, the plaintiffs indicate that they have not given up the fight.

• In Georgia, parents of trans youth are fighting back against laws restricting access to gender-affirming care for minors.

Issue of the Week:
Where do Presidential Hopefuls Stand on the Question of a National Abortion Ban

As more and more Republicans officially throw their hat in the 2024 presidential ring, the possibility of a national abortion ban has emerged as a major talking point, with potential nominees eager to distinguish their positions on the issue. The idea of a federal abortion ban flies in the face of the “abortion should be returned to the states” argument that was previously embraced by pro-life advocates and enunciated by the Supreme Court in Dobbs. Of course, we know that the movement to restrict abortion was never actually about federalism, but it is still worth calling out the about-face done by much of the anti-choice movement in just one short year. The possibility of a national abortion ban may seem extreme and unlikely, but so too did the overturning of Roe–until it happened. If a Republican takes office in 2024 and the party establishes a majority in both houses of Congress, a national abortion ban all of a sudden becomes very possible, if not likely. So, let's take a look at where some of the top-polling candidates stand at this time: 

• Donald Trump: The former President has arguably done more to advance the pro-life movement than any other president. His nomination of three conservative justices to the Supreme Court paved the way for the overturning of Roe v. Wade. And, his many lower court appointments created a climate where anti-choice attacks, like the challenge to the FDA’s approval of mifepristone, can thrive. However, the former President has waffled on whether he would support a national abortion ban if re-elected. In April of this year, he faced backlash from a prominent pro-life group for stating that abortion should be left up to the states. However, he has also stated that he believes that there is a role for both the states and the federal government to play in “protecting unborn life,” seeming to leave the door open to the possibility. Regardless, we can be certain that another Trump presidency would mean 4 more years with an administration hostile to abortion and bodily autonomy rights. 

• Ron De Santis: Ron De Santis, the current governor of Florida has positioned himself as staunchly anti-abortion, signing into law a 6-week abortion ban in his own state. However, similar to Mr. Trump, he has not definitively taken a position on whether he would support the passage of a national ban, likely because that position is demonstrably unpopular amongst the American people. However, Governor De Santis, if elected, is certain to continue Donald Trump’s work of appointing extremely conservative judges opposed to abortion. 

• Mike Pence: Former Vice President Mike Pence has consistently reiterated his anti-abortion views. As a presidential candidate, he has stated that both himself and his campaign “stand without apology for the right to life.” He has been critical of President Biden’s pro-choice position and endorsed a 15-week federal ban, encouraging his fellow 2024 candidates to do the same. 

• Nikki Haley: Former South Carolina Governor Nikki Haley has stated that she would “absolutely” sign a 15-week national abortion ban if elected. The former governor has emphasized what she describes as the need for greater Republican consensus on the issue before a federal ban would be politically viable; however, she is clear on her anti-abortion stance, and if a proposed ban cleared Congress, she would support it. 

• Tim Scott: South Carolina senator Tim Scott initially waffled on his position on a national abortion ban; however, he has since made it clear that he would be in support of such a measure. In late June, the Republican senator published an opinion piece in the Des Moines Register in which he stated that he is 100% pro-life, would sign the most pro-life legislation that made it to his desk, and that we should start with a 15-week national abortion ban. 

• Vivek Ramaswamy: Entrepreneur Vivek Ramaswamy has described himself as “unapologetically pro-life.” However, he has declined to support a federal abortion ban, explaining his belief that if abortion is murder and murder laws are handled at the state-level, then abortion should also be a state issue. At the state level, he has signaled his support for 6-week abortion bans. 

• Chris Christie: Former New Jersey governor has described himself as pro-life; however, he has not come out in favor of a national abortion ban, instead stating that abortion should be decided by the states. It is worth nothing, however, that during Christie’s 2016 run for president, he did announce his support for a 20-week federal abortion ban. Christie has also expressed his view that there is no constitutional right to abortion, signaling that his would be an administration hostile to choice. 

• Doug Burgum: Doug Burgum’s tenure as Governor of North Dakota has made his stance on abortion unmistakably clear. In his own state, he signed a 6-week abortion ban into law, effectively outlawing the procedure. However, Governor Burgum has stated that he believes that abortion belongs with the states and, if elected, he would not sign a federal abortion ban. 

Although there is still time before the 2024 election race ramps up in earnest, abortion is certain to continue to be a major talking point. A Republican president could signal disaster for reproductive and bodily autonomy rights. It is crucial that we stay informed and that, when the time comes, we get out and vote. Our rights depend on it. 

REPRODUCTIVE HEALTH DIGEST (6/26/23)

Developments in Abortion, Autonomy, and Access: 

Rapid legal developments in abortion, autonomy, and access to health care continue to shape the legal landscape in the U.S.. In the past two weeks, significant changes have occurred. The state Supreme Court in Ohio approved an August special election to raise the votes needed to pass a constitutional amendment in an attempt to hinder abortion rights and direct democracy. In Wyoming, a judge blocked the implementation of a state law banning medication abortion, offering temporary relief in an ongoing battle. Iowa's Supreme Court retained the block on a 6-week abortion ban, ensuring abortion remains legal until 20 weeks in the state. A lawsuit challenging Indiana's abortion ban on religious grounds gained class-action status, with the attorney general appealing the decision. The Planned Parenthood lawsuit against Nebraska's abortion and gender-affirming care ban has been temporarily stayed, allowing the ban to continue. In North Dakota, abortion providers, and clinics continue to challenge the state's restrictive abortion ban. Additionally, there were two significant victories for bodily autonomy in New York as Governor Kathy Hochul signed an order protecting reproductive rights and gender-affirming care in the city. 

Legal Changes at the State Level: 

• Brief Overview: 

• Ohio:  In Ohio, the state Supreme Court has given the ok to an August special election that will determine whether to raise the votes needed to pass a constitutional amendment from a simple majority to 60%, a dark money-fueled move designed to hinder attempts to enshrine abortion rights into the constitution that also has chilling implications for the future of direct democracy across our nation.

• Wyoming: A Wyoming judge has blocked the implementation of the first state law that would have specifically banned the use of medication abortion, which was otherwise set to take effect on July 1.

• Iowa: The Iowa Supreme Court has declined to reinstate a 6-week abortion ban, allowing abortion to remain legal until 20 weeks in the state for the time being. 

• Indiana: In Indiana, a lawsuit challenging the state’s abortion ban on religious grounds has been issued class-action status. The State’s attorney general is appealing this decision.

• Nebraska: The Planned Parenthood lawsuit challenging the constitutionality of Nebraska’s abortion and gender-affirming care ban has been stayed for another month, allowing the ban to continue in the meantime. 

• North Dakota: In North Dakota, an abortion clinic and abortion providers continue to challenge the state’s restrictive abortion ban. 
  

Deeper Legal Analysis 

• Ohio: Dark money-funded groups won big last week when the Supreme Court allowed a provision that would increase the burden on ballot amendments. Republicans in support of Issue 1, including Ohio’s elections chief Secretary of State Frank LaRose, have pointed to the abortion proposal as a main reason they’d like to see the voter threshold amendment pass in August, as it would cause significant challenges for the amendment, for which signature gathering has been well under way. In their suit, reproductive rights advocates questioned why the standards would have changed so quickly and so dramatically. They suggested that Republicans in the state Legislature only reversed themselves on the issue because if the threshold measure is passed in August, it could prevent the approval of a proposed amendment in November to enshrine abortion rights in the state constitution. However, in its 4-3 decision, the conservative majority on the state Supreme Court sided with the GOP lawmakers. The court ruled that the August 8 election is entirely legal and constitutional, and legislators had the freedom and leeway to schedule the race.
  

• Wyoming: A Wyoming judge issued a temporary block on the country’s first state law specifically banning the use of pills for abortion, the most common method in the country, just over a week before the ban was scheduled to take effect. The group behind the suit also filed a lawsuit against the state's near-total abortion ban, which had previously been temporarily blocked by Wyoming's Ninth District Court Judge Melissa Owens in March. The broader abortion ban would essentially supersede the medications ban by outlawing most abortions regardless of the method used, rendering a prohibition on medication abortion largely symbolic. In Owens’ ruling, she argued that the state failed to show that allowing the law to go into effect before the lawsuit was resolved wouldn't hurt the plaintiffs.
  

• Iowa: Iowa’s Supreme Court maintained the state’s block on a 6-week abortion ban, with a deadlocked 3-3 court (as one judge is conflicted out). The court’s ruling stemmed from a 2018 so-called ‘heartbeat bill’  that banned abortions in the state at the sixth week of pregnancy, or when, in some cases, a fetal pulse could first be heard via ultrasound. An Iowa district court swiftly blocked the law from taking effect, ruling that it violated the state Constitution — specifically its due process and equal protection clauses, the same legal arguments that U.S. Supreme Court justices issued in the landmark 1973 Roe ruling that provided federal abortion protections.
  

• Indiana: A group of plaintiffs won class action status in a religious objection lawsuit, which was filed by attorneys at ACLU on behalf of 5 anonymous plaintiffs and the organization Jews for Choice. Plaintiffs seek recognition of the right to abortion on the basis of Indiana’s 2015 Religious Freedom Restoration Act, which they argue applies to a broad definition of religion, providing the opening for the creation of a class “whose religious beliefs ‘direct them to obtain abortions in situations’ prohibited by the ban, and ‘who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion.”
  

What else is happening in access? 

• One year post-Dobbs, pregnant patients and providers are both still struggling to stay on top of the constant, kaleidoscopic changes in the law, leading them to seek safety and care outside of their home communities.

• Several doctors have consistently testified in favor of bans on gender affirming care; you can read about those doctors here. 

• Massachusetts has taken steps to protect the cell phone data of abortion seekers. 

• Ambiguous and overly-restrictive abortion bans are causing states to lose a generation of ob-gyns. 

• Connecticut has appointed special counsel to manage and advise on the defense of reproductive rights in the state. Also in Connecticut, the Governor has signed legislation that will allow pharmacists to prescribe birth control. 

• The Guardian has compiled a comprehensive list of the 1,572 politicians who have helped to ban abortion in the year since the Dobbs decision, labeled by state and broken down by party affiliation. 

• The Mayor of New York City has signed an order protecting gender affirming care in the city. 

• New York Governor Kathy Hochul has signed bills into law protecting both abortion rights and gender affirming care from out of state encroachment. 

• One year post-Roe, you can read about the state of abortion rights across the country here.

Issue of the Week:
One year since Dobbs, it’s being used to… Circumvent direct democracy? 

This week is the one-year anniversary of Dobbs, the Supreme Court decision that overturned Roe v. Wade and purportedly returned the issue of abortion to the states. In reality, the decision has created uncertainty across and within these “United” States of America, with nearly half restricting abortion, fourteen banning it entirely, an ever-growing list enshrining abortion rights in their statutory law or state constitution, and several passing “shield laws” aimed at protecting patients traveling for abortion and their medical providers from the reach of out of state investigations. 

Despite the political maelstrom precipitated by Dobbs, support for abortion rights remains consistent, even in conservative states. In fact, a new Gallup poll shows that support for abortion rights has reached an all time high. No wonder anti-choice politicians are now taking the fight to the ballot box, where they seek to circumvent the tools of direct democracy by increasing the stakes to get a measure passed through ballot measures.

For this week’s analysis of the connection between bodily autonomy and democracy, we at L4GG turned to our friend and ally Brendan Fischer, Deputy Executive Director of Documented, a nonprofit organization that tracks how dark money has infiltrated and corrupted the political process. As Brendan reported in this weekend’s Guardian, a Florida-based group mainly funded by one Illinois billionaire is driving attacks on direct democracy in states such as Ohio, Missouri, South Dakota and Arkansas, largely based on his desire to ban abortion. Key takeaways from his analysis include:

• This group, the Foundation for Government Accountability, is affiliated with the alliance of conservative think tanks called the State Policy Network, which has been central to raise the threshold for passing citizen ballot initiatives from a simple majority to a supermajority, and to make it harder to place measures on the ballot in the first place.

• In at least four states, FGA and its lobbying arm, the Opportunity Solutions Project, have lobbied or testified in favor of changing ballot initiative rules to enshrine minority rule, financed ballot committees advocating for those changes, and issued reports, legal memos, op-eds and polling that advocate for gutting direct democracy.

• They led the latest fight in Ohio, where Republican lawmakers last month passed a measure requiring future constitutional amendments to receive at least 60% support from voters – rather than a simple majority – and that would make it harder for proposed amendments to make it onto the ballot. Ohioans will now vote in August on whether to approve the higher thresholds, which are designed to derail an abortion rights initiative expected to be on the ballot in November.

• When Ohio Republicans first proposed the supermajority requirement last year, a representative of FGA’s lobbying arm was the only person who testified in favor. FGA’s lobbying arm again testified in support of the proposal earlier this year, in hearings before the House and Senate. FGA argued that the proposal was necessary to “make it more difficult for out of state billionaires and dark money groups” to change Ohio law.

• As the measure moved through Ohio’s Republican-controlled legislature, the Illinois billionaire Dick Uihlein gave $1.1m to the newly created “Save Our Constitution PAC”, which ran ads pressuring state lawmakers to support the measure; Uihlein is expected to contribute more as the August vote approaches.

• A foundation controlled by Uihlein is also the largest known source of FGA’s funding, giving $17.6m since 2014. Uihlein has also been one of the key funders of election denial. Among other things, Uihlein has poured tens of millions into his “Restoration of America” network that promotes ludicrous election conspiracy theories and which created a controversial database that published voters’ personal information online in the name of uncovering election fraud. In the 2022 cycle, Dick Uihlein and his wife, Liz, were also top donors to election-denying candidates like the Pennsylvania gubernatorial hopeful Doug Mastriano and Nevada secretary of state candidate Jim Marchant. 

• FGA itself began to focus on “election integrity” in 2021, and boasted that it “achieved more than 70 election integrity policy wins across 19 states” last year.

• FGA has actually been promoting a supermajority requirement in Ohio and other states since at least 2021. That year, FGA issued a legal memo arguing for the constitutionality of a 60% requirement for enacting ballot initiatives, and a report decrying how voters in red states like Missouri, Oklahoma and Nebraska had approved Medicaid expansion through the ballot initiative process. FGA and its lobbying arm also began testifying in support of state efforts to make it harder to enact ballot measures, and its in-house polling firm released Ohio polling showing voter support for a 60% threshold and for placing other restrictions on the initiative process. FGA’s tactics in Ohio echo those used previously – and unsuccessfully – in Arkansas and South Dakota. 

Brendan’s research reminds us that attacks on abortion and democracy are intimately connected, and we cannot win one fight without the other. It is also a reminder that the opposition will pursue their own moral agenda to the detriment of foundational democratic principles–we cannot allow that to happen. However, support for the right to abortion is at an all-time high, and we can win these fights–we just have to stay in them and remain vigilant against billionaire-backed plans to overrule the clear will of the people.

REPRODUCTIVE HEALTH DIGEST (6/9/23)

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. 

REPRODUCTIVE HEALTH DIGEST (5/26/23)

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. Please read on for more detailed information about the legal changes that have taken place in the past 2 weeks.

Legal Changes at the State Level: 

• Brief Overview: 

• Nebraska: Nebraska passed LB 574, narrowing the window for abortion from 20 weeks to 12 weeks, with exceptions for rape, incest, or to save the life of the pregnant person. 

• South Carolina: South Carolina lawmakers continued to work into legislative overtime this week, and on Tuesday May 23, the state passed the proposed 6-week abortion ban. Governor McMaster signed the bill into law on Thursday, May 25, and it was immediately challenged in state court. On Friday May 26, a South Carolina judge temporarily blocked the law while the court evaluates its constitutionality. 
  
  

• Montana: Montana Governor Gianforte signed a host of restrictive abortion bills, most notably a ban on dilation and evacuation (D&E) procedures after 15 weeks. This 15 week ban was immediately blocked by a temporary restraining order issued by a Montana district judge. 
  
  

• North Carolina: North Carolina’s legislature passed SB20, a 12-week abortion ban, over Governor Roy Cooper’s veto.
  
  

• Alliance for Hippocratic Medicine v. FDA (mifepristone case): Last Wednesday, federal judges at the Fifth Circuit Court of Appeals heard oral arguments in the case that will determine whether mifepristone remains available for medication abortion. 

• The Federal Government found that hospitals in Kansas and Missouri violated federal law (the Emergency Medical Treatment and Labor Act, or ‘EMTALA”) for failing to provide an abortion to a woman in a medical emergency, reinvigorating conversations about the federal government’s obligation to protect the rights of pregnant people from state encroachment. Secretary of Health and Human Services Xavier Becerra has sent a letter to all hospitals that participate in medicare, reminding them that their obligations under federal law supersede state abortion bans. The Propublica report linked above is a striking example of how entire hospital systems can fail patients in dire need of care, highlighting how these patients’ stories are not individual one-off cases, but rather the inevitable result of poorly drawn laws.
  
  
  

Deeper Legal Analysis 

• Nebraska: 

  • Nebraska has passed LB 574, its 12-week abortion ban, narrowing the window down from the previous 20 weeks. This new ban includes exceptions for rape, incest or to save the life of the pregnant person.  Notably, this latest restriction was added as an amendment to Nebraska’s ban on gender affirming care for individuals under the age of 19. Nebraska’s passed LB 574 by one vote, against the backdrop of protestors chanting “one more vote to save our lives.” Trans health and reproductive rights are at the heart of the fight for bodily autonomy, and they have both been subjected to unrelenting attack during this legislative session. The packaging of these two issues into one bill signals a need for advocates to act in unity in opposing restrictions of this kind. Restrictive abortion bans and bans on gender affirming healthcare seek to achieve the same overarching goal: political control over individual bodies and medical decisions. It is no coincidence that this control is exercised in a way that elevates “traditional” ideas about heteronormativity and reproduction. For more on how these two issue areas are related, I highly recommend this opinion piece from the Guardian.

• South Carolina:

  • The South Carolina legislature continued to work into legislative overtime this week, and on Tuesday May 23, lawmakers passed the proposed 6-week abortion ban, which restricts abortion after fetal cardiac activity is detectable. The bill will became operative upon signing by the Governor on Thursday, May 25, . The bill contains narrow exceptions for rape or incest until 12 weeks gestational age as well as for cases of fatal fetal anomaly and risk to the life of the pregnant person. The rape or incest exception only applies if the crime is reported to law enforcement within 24 hours of the abortion procedure, and the physician is required to inform the patient that they will report it to the sheriff. As we have previously discussed,  requirements that victims of assault report the crime to law enforcement create substantial barriers to care, particularly for those individuals whose perpetrators are family members, friends or intimate partners. This new was immediately challenged by South Carolina advocates, on the grounds that it violates South Carolinians constitutional right to privacy. On Friday May 26, less than 24 hours after being signed by the Governor, a South Carolina judge temporarily blocked the law pending the court’s evaluation of its constitutionality. Earlier this year, a very similar 6-week ban was found to be unconstitutional and permanently blocked by the state’s Supreme Court on those same grounds. 

  • The “sister senators,” who successfully blocked previous attempts to ban or restrict abortion in South Carolina,  attempted to do the same with this bill, but were unfortunately unable to overcome the vote. The 5 female senators span the political spectrum, but are united in their view that this law is bad for pregnant people in South carolina. 6-week bans function as near-total bans. They restrict abortion at a point in pregnancy before most people are able to know they are pregnant–let alone make a decision and schedule, pay for, and receive care. With North Carolina restricting access to 12 weeks, and Florida standing poised to implement its 6-week ban, South Carolina’s passage of this bill is devastating for abortion access in the South. 

• Montana:

  • Montana governor Gianforte signed a host of restrictive abortion bills, most notably a ban on dilation and evaluation (D&E) procedures after 15 weeks. This 15 week ban was immediately blocked by a temporary restraining order issued by a Montana district judge. Among the other bills signed were two restrictions on medicaid coverage for abortion and stricter regulations for clinics providing abortion services. This suite of newly passed laws comes shortly after the Montana Supreme Court upheld the ability of certain nurses to perform abortions, and in the opinion, reaffirmed that abortion is a medical decision that falls under the purview of Montana’s constitutional right to privacy. 

• North Carolina:  

• North Carolina has passed SB20, a 12-week abortion ban, over Governor Roy Cooper’s veto. The bill is set to take effect on July 01, 2023 and contains exceptions up to 20-weeks for victims of sexual assault, and up to 24 weeks for diagnosed life-limiting fetal anomalies. North Carolina previously permitted abortion until 20 weeks gestation. In addition to narrowing the window during which abortion is available, this bill contains a whole host of provisions that unnecessarily restrict and regulate access to care, including a requirement that medication abortion only be administered after an in-person physician visit verifying that the fetal gestational age is less than 70 days (10 weeks), and 3 required in person visits. Please read on for more detail about this new law, in this week’s ‘issue of the week.’ 

• Despite a years-long record of supporting abortion rights, including discussing her own medically necessary abortion, state representative Tricia Cotham recently flipped parties and handed republicans the one vote that they needed to override the Governor’s veto and pass SB20 into law. 

• Alliance for Hippocratic Medicine v. FDA:

• Last Wednesday, in New Orleans, the Fifth Circuit Court of Appeals heard oral arguments in Alliance for Hippocratic Medicine v. FDA, the mifepristone case that will determine whether the FDA’s approval of the drug for medication abortions remains intact. The uniformly conservative panel, made up of two Trump appointees and a George. W. Bush appointee disproportionately hammered FDA and intervenor Danco counsel with questions from the very first moments of the argument. 

• Throughout the two-hour arguments, much of the discussion centered on whether the Plaintiffs had suffered any injury as a result of FDA’s approval of mifepristone. Individualized injury is a constitutional prerequisite to bringing a lawsuit. The panel appeared sympathetic to the Plaintiffs’ claim that they will be imminently harmed by being forced to participate in surgical abortions after a failed medication abortion, despite no evidence supporting that claim. Plaintiffs, and the Fifth Circuit panel, relied in part upon flawed studies that purport to demonstrate that mifepristone is far more dangerous than it actually is. The panel seemed skeptical of Defendants’ argument that conscience objections, which permit doctors to decline to provide treatment that violates their conscience, protect the doctors from any risk of harm (they do). 

• With respect to the long term availability of the drug, the panel did appear less sympathetic to the Plaintiffs’ argument that their failure to challenge the 2000 approval of mifepristone within the 6-year statute of limitations should be excused. Generally speaking, failure to file a lawsuit within the statute of limitations is fatal to the claim, and the Plaintiffs have presented no meaningful reason to deviate from this norm.  A finding that that claim is time-barred would restrict Plaintiffs to their challenge to their challenge to the 2016 relaxation of the terms of use, leaving the 2000 underlying approval intact. Regardless of the Fifth Circuit’s ruling, which could take weeks or months to come down, this case is all but certain to end up in front of the Supreme Court once again, despite the Court’s proclamations last year that it was returning the question of abortion to the states.

What else is happening in access? 

• Viability: Please read this excellent write up from the American College of Obstetricians and Gynecologists (ACOG) on the complexities of ‘viability’ and why it is inappropriate for legislators to interfere in that complex and medical determination. 
  

• Florida: Florida governor (and presidential hopeful) Ron DeSantis signed a host of anti-trans and anti-LGBTQ+ bills; although these do not specifically impact abortion, the opposition uses the same playbook against all rights to bodily autonomy. 
  

• A recent report from the Center for Reproductive Rights (CRR), Physicians for Human Rights (PHR), and Oklahoma Call for Reproductive Justice,  highlights the troubling lack of information, guidance or consensus on abortion protocols in Oklahoma hospitals, leading to worsened care for patients. 
  

• Mifepristone: Individuals who have taken mifepristone for a medication abortion tell their real experiences with the medication, and their reasons for taking the drug–ranging from miscarriage management to elective abortion to alleviation of gender dysphoria. 
  

• In Iowa, the Supreme Court is set to end its term soon; however, the Court still has not ruled on the State’s request to lift an injunction that is currently blocking Iowa’s 6-week abortion ban from going into effect. Failure to do so in this term will mean that the issue is not closed at least until the next term."
  

• A recent survey shows that restrictive abortion laws are likely to drive away new doctors, increasing strain on the medical system in those states. 
  

• This Reuters article provides an overview of changes in abortion law in 2023, both restrictive and protective.
  

Issue of the Week: North Carolina’s Abortion Ban

Last week, North Carolina joined South Carolina and Nebraska in passing abortion restrictions at the tail end of their legislative sessions, when the state passed  a 12-week abortion restriction over Governor Roy Cooper’s veto. Although supporters of the new law touted it as a compromise between the left and the right leaning factions of the state, a detailed look at the bill contradicts that, and it is worth discussing why. To borrow Governor Cooper’s words, it is in reality “a compromise between the right wing and the radical right wing.” In order to better understand the true impact of any new legislation, it is important to take some time to look beyond the bill’s headline, at the text  of the law itself. 

North Carolina’s new laws regulates surgical abortion at 12 weeks and medication abortion at 70 days (10 weeks) gestational age. The full text of the bill spans approximately 45 pages of amendments and new language and contains numerous medically unnecessary or misleading provisions. First, the bill requires a patient seeking a surgical abortion within the first trimester to have an in-person visit with their doctor at least 72 hours prior to performance of the procedure–the longest waiting period in the country. Previously, patients could start the 72-hour clock with a phone call to their physician; however, the new law removes that option and implements an in-person only requirement. Waiting periods like this serve no medical purpose, but they do create significant barriers to care. Pregnant people seeking an abortion, particularly those who have to travel long distances to obtain care, now must take multiple days off work, arrange childcare for multiple doctor’s appointments, cover the costs of travel, and if they are not in a situation to safely disclose their decision–find a way to conceal their absence. This 72-hour waiting period is particularly problematic when considered against the backdrop of North Carolina’s geography–the state is surrounded by restrictive southern states, meaning that many pregnant people are forced to travel from their home state to North Carolina for access. And, for patients who elect to have a medication abortion, the doctor performing the procedure is required to schedule a follow up visit within 7-14 days and “make all reasonable efforts to ensure that the woman returns” for the scheduled visit. This means that the law requires a third in-person visit to the prescribing physician, rather than permitting the pregnant person to seek medical care in the rare circumstance that they encounter complications, or to follow-up with their local physician or emergency room. 

Like all abortion bans, SB20 purports to contain certain exceptions. But again, a closer look is warranted. The law permits abortions in cases of rape or incest until the twentieth week of pregnancy, and in cases of “life-limiting” fetal anomalies until twenty-four weeks gestational age. The law also includes a provision permitting abortions in cases of medical emergency. It imposes penalties including loss of professional licensure, civil lawsuits and potential criminal prosecution on physicians who are found in violation of the law. This means that doctors and hospitals are necessarily forced into risk-averse positions, to the detriment of patient care. This patient harm has been documented time and time again since the overturning of Roe.  Turning to North Carolina’s exception for medical emergencies, the language is drawn in highly subjective and non-medical terms. Specifically, the law defines a medical emergency as a condition which, “in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create series risk of substantial and irreversible physical impairment of a major bodily function.” Functionally, this requires a patient to become “sick enough” before a doctor can feel secure in their decision to provide care–even if they know that the patient’s health is in inevitable jeopardy. Additionally, the exception expressly excludes “any psychological or emotional conditions” from its definition of medical emergency. This means that a patient who presents with immediate suicidality in the face of an unwanted pregnancy cannot invoke an exception for medical emergency. With respect to exceptions for life-limiting fetal anomalies, North Carolina requires “the diagnosis … of a physical or genetic condition that (i) is defined as a life-limiting disorder by current medical evidence and (ii) is uniformly diagnosable.” Its that second provision that is troubling, because even where a doctor’s training and judgment indicates the overwhelmingly likely outcome, it can still be difficult for doctors to be absolutely certain that a particular condition or set of conditions is “uniformly” fatal. This opens the physician up to the risk of another person questioning their professional judgment, with dire consequences attached. In short, these exceptions are inartfully drawn, making it difficult for both patients and providers to utilize them effectively. 

This is certainly not a comprehensive overview of everything contained within North Carolina’s new law, but SB20 does provide an informative case study on how seemingly facially moderate abortion restrictions may operate to severely restrict access. We encourage interested readers to look into the details of these laws and consider their practical implications. 

REPRODUCTIVE HEALTH DIGEST (5/12/23)

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.

REPRODUCTIVE HEALTH DIGEST (4/27/23)

Developments in Abortion, Autonomy, and Access: 

The past several weeks have brought an onslaught of rapid changes to abortion and bodily autonomy law at the state and, with the addition of the federal case challenging medication abortion, federal levels. Anti-choice legislators have been aggressively proposing, enacting and amending abortion restrictions, while other states attempt to mitigate this harm and carve out protections for providers and patients. Meanwhile, the future of access to medication abortion is uncertain, as parties litigate the FDA's approval of mifepristone before the Fifth Circuit Court of Appeals. Although not an exhaustive overview, read on for a summary of some of the actions to watch: 

Legal Changes at the State Level: 

• Brief Overview: 

• On April 13, Florida passed a 6 week abortion ban, which will take effect once the state Supreme Court rules on the currently challenged (but operative) 15 week ban. 

• On April 25, North Dakota’s governor signed into law a ban on abortion throughout the entire pregnancy, with very limited exceptions for the life or health of the mother and for cases of rape, incest or medical emergency up until 6 weeks gestational age, reasserting its determination to be a staunchly anti-abortion state. 

• On April 4, Idaho’s governor signed into law a statute that amends the language of its abortion ban, creating exceptions for rape or incest and life of the pregnant person, but restricting its rape or incest exception to first trimester procedures. 

• Throughout March and April, Colorado and New Mexico have passed protective legislation aimed at shielding providers and patients from out-of-state prosecution and investigation. 

• On April 18, HB0883 was transmitted to the governor’s desk. Tennessee’s new law that would amend its abortion ban to include exceptions (rather than affirmative defenses) for the life of the pregnant person has made its way to the governor’s desk. 

• At the federal level, The Supreme Court ruled last week in Alliance for Hippocratic Medicine v. FDA that mifepristone will remain available pending resolution of the appeal at the Fifth Circuit Court of Appeals and a subsequent petition to the Supreme Court, if one is sought. Mifepristone is one of two drugs used in a standard medication abortion regime; the plaintiffs in this case seek to reverse the FDA’s 2000 approval of the drug. 

Deeper Legal Analysis 

• Florida: 

• On April 13, 2023, Florida Governor Ron DeSantis signed SB 300; this law further restricts abortion access in Florida from 15 weeks to 6 weeks, a restriction that the majority of Floridians do not support. 6-week bans prohibit abortion at a gestational point before most people know they are pregnant, and as we have seen play out in other states like Texas, they functionally operate as complete bans. Because of an ongoing legal challenge to the state’s operative 15-week ban, the new 6-week restriction will go into effect 30 afters after the Florida Supreme Court rules on that challenge. 

• 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. 

• North Dakota: 

• In North Dakota, lawmakers have passed another total abortion ban, which would criminalize abortions with limited exceptions for the life or health of the pregnant person and for cases of rape or incest, if the abortion occurs within the first 6 weeks of pregnancy. The bill passed the state house and senate with veto-proof majorities and was signed into law by the governor on April 25. This new legislation comes a month after North Dakota’s Supreme Court declared the state’s trigger ban unconstitutional; the North Dakota House Majority Leader explained that they passed this new to “send another message to the North Dakota Supreme Court,” that “[t]his is what the Legislature wants[;] we want pro-life in North Dakota.”

• Idaho:

• As you may recall, Idaho’s Supreme Court determined in January that the state constitution did not include a right to abortion. Since then, the Idaho Legislature has been aggressive in its anti-abortion agenda. In early April, Idaho became the first state to enact a law targeting interstate travel to access abortion care. HB 242 criminalizes so-called “abortion trafficking”, which the statute defines as recruiting, harboring or transporting a pregnant minor within Idaho without parental consent; the pregnant person’s consent to the travel and procedure is not a defense to the law. 

• Also in April, Idaho passed HB 374, which amended the language of its criminal abortion statute; this amendment will take effect on July 1, 2023. It replaces the current affirmative defense language for circumstances of rape or incest, or where the pregnant person’s life is at risk with exception language. The bill also amended the rape or incest exception to clarify that it only applies to procedures performed during the first trimester. 

• This bill is emblematic of the kind of facial loosening of restrictions that reflects an attempt to seem more moderate on the issue of abortion, without actually improving access to care. You can read more on that here: https://www.nytimes.com/interactive/2023/01/21/us/abortion-ban-exceptions.html. 

• Idaho has recently had to contend with its physicians leaving the state, or considering leaving the state. And one hospital closed the doors to its obstetrics ward, citing in part the fact that the “the Idaho Legislature continues to introduce and pass bills that criminalize physicians for medical care nationally recognized as the standard of care.” 

• Colorado & New Mexico:

• Colorado and New Mexico both recently passed protective legislation, aimed at shielding providers and patients from anti-abortion attacks from both in and out of state. 

• On April 5, 2023, New Mexico passed SB13, the Reproductive and Gender-Affirming Health Care Protection Act, which prohibits state entities from cooperating with out-of-state criminal and civil investigations of patients and providers. Last month, New Mexico passed HB 7, the Gender-Affirming Health Care Freedom Act, which prohibits any public body from imposing laws, ordinances, policies or regulations that prevent patients from receiving reproductive or gender-affirming care. 

• This legislation comes at a time when certain New Mexico cities are attempting to pass and defend local abortion bans, arguing that the mailing of materials used for abortion is in violation of federal law. 

• Colorado passed similar protective legislation in Mid-April. Abortion providers in Colorado are now partially protected by both executive order and by statute. In 2022, Colorado’s governor signed an Executive Order aimed at protecting providers engaged in lawful acts under CO state law from facing liability or disciplinary action connected to out-of-state investigations. This past week, the governor passed additional protective laws. Mostly notably, SB 23-188, which lays out non-interference mandates for government officials. Under this law, Colorado won't comply with wiretapping and extradition requests from other states related to abortion or gender affirming care; the state will not issue subpoenas, summons or search warrants related to the same; and, state courts won't consider civil actions brought by individuals.

• Tennessee: 

• We have heard a lot about Tennessee in the past few months, as their abortion ban is arguably the most extreme in the nation. Earlier this week, a bill made it to the governor’s desk which would allow narrow exceptions to the state’s abortion ban by replacing the currently existing affirmative defenses with exception language.  The governor can sign the bill, veto it, or let it sit for 10 days without action, at which point it will become law. 

• Alliance for Hippocratic Medicine v. FDA 

• Alliance for Hippocratic Medicine v. FDA is the case everyone has been watching and talking about, as it threatens to restrict access to the medication abortion drug mifepristone nationwide. This case was initiated by a group of anti-abortion physicians and physician groups who sued the FDA, arguing that its 2000 approval of mifepristone, one of two drugs used in a standard medication abortion regimen, was improper. The case also challenges the easing of certain restrictions on the administration of mifepristone that took effect in 2016 and 2021, including lifting the requirement of an in-person visit during the Covid-19 pandemic, and increasing the window of use from 49 days gestational age to 70 days. Kaiser Family Foundation created an excellent explainer on the initial case, available here: https://www.kff.org/womens-health-policy/issue-brief/legal-challenges-to-the-fda-approval-of-medication-abortion-pills/. 

• Procedural Recap: 

• On April 7, conservative Judge Matthew Kascmaryk  granted the Plaintiffs’ motion for preliminary injunction and ordered the FDA to halt its approval of mifepristone as well as its subsequent easing of restrictions, including the lifting of the in-person requirement for administration of the drug In his order, he granted the government 7 days to appeal that decision to the Fifth Circuit. 

• Shortly after Judge Kascmaryk issued his ruling, a federal court out of Washington state issued a conflicting ruling, ordering the FDA to maintain the status quo of mifepristone in the 17 states and District of Columbia involved in that case. 

• On April 13, The Fifth circuit reversed course on the 2000 preliminary injunction, finding that the plaintiffs’ challenge was past the statute of limitations, but it upheld the district court’s findings as to the 2016 and 2021 revisions to the drug’s regulations, and it approved and adopted some of the most troubling aspects of Judge Kascmaryk’s legal reasoning. 

• Following the Fifth Circuit’s ruling, the government sought an emergency stay from the Supreme Court–meaning that they are asking SCOTUS to rule that mifepristone must continue to be available while the parties litigate the merits of the case. After initially granting a temporary stay, the Supreme Court ruled on April 21 that the lower courts’ ruling is stayed “pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a writ of certiorari” to the Supreme Court, if one is sought. 

• The Current Takeaway: at this moment, the FDA’s approval of mifepristone stands and the legality of distributing the drug will remain in place while the parties litigate before the lower courts. At this time, the Fifth Circuit Court of Appeals is set to receive briefing and hear oral arguments in May; depending on how that court rules, the case could end up back in front of the Supreme Court or it could go back down to the District Court for full litigation. 

• Other things to watch with this case: 

• Adding another layer to this case, this past week, Genbiopro, the manufacturer of the generic version of mifepristone has sued the FDA in a bid to protect abortion access. 

• Some states have responded by beginning to stockpile mifepristone in anticipation of an adverse ruling. Other groups, like these California Doulas, have similarly begun to shift their operations in preparation for further restrictions to abortion access. 

• If you’re interested in reading a more thorough evisceration of both the district court and the Fifth Circuit’s rulings, I recommend these breakdowns from attorney Adam Unikowsky: 

• District Court: https://adamunikowsky.substack.com/p/mifepristone-and-the-rule-of-law-9c4 

• Fifth Circuit:  https://adamunikowsky.substack.com/p/mifepristone-and-the-rule-of-law-f6a 

What else is happening in access? 

• The Texas House has advanced HB9000, a law that restricts access to books in schools. During debate on Wednesday, State Rep Ron Reynolds, explained that book bans have a long history of being applied in a discriminatory manner, with targeted titles centering on LBGTQ issues, protagonists of color and teen pregnancy.  

• Iowa’s republican Attorney General suspended coverage of emergency contraception for rape victims. 

• The abortion clinic in West Virginia that was challenging the state’s abortion ban has voluntarily dropped its suit, citing its inability to continue providing abortion care in the state at this time. 

• Missouri has passed a gender affirming care ban that affects adults as well as minors, making it the most extreme in the nation. 

• As we all know, the fight for bodily autonomy in gender affirming care and the fight for abortion rights are inextricably intertwined. Both of these movements center the right to make healthcare decisions in consultation with your doctor and family, without the state inviting itself into the room.  For a detailed look at these laws, see Lawyers for Good Government’s Trans Health Report.

• The ongoing threat to Mifepristone could “spur increased activism and lobbying from organizations opposed to other drugs or medical treatments, such as COVID-19 vaccines, contraceptives, hormones for artificial reproductive technology or gender affirming procedures, and HIV prevention drugs.
  

Issue of the Week: Abortion Exceptions and Why They Don’t Work 

This week’s newsletter contains a few legal hits relating to states like Tennessee seemingly loosening their abortion bans by adding in or amending exceptions. While this may look like progress, it is worth taking a moment to discuss why these exceptions may be politically expedient for legislators who hope to appear more moderate, but are ultimately unworkable. At the outset, these exceptions largely use vague non-medical language, like “life or health of the mother.” This language is open to interpretation and reasonable medical minds can differ. Where there is ambiguous language combined with severe criminal and civil penalties for violations of the law, physicians are forced to take risk averse positions rather than provide medically standard care. States that require the pregnant person’s life or health to be in imminent danger before action can be taken have created a framework where, by the letter of the law, the doctors must wait until the pregnant person is sick enough to require emergency care before they can feel safe intervening–even if they are medically certain that the pregnancy is no longer viable. For example, in Texas 5 women are suing the state for circumstances just like that. One of those women, Amanda Zurawski, was diagnosed with a condition that guaranteed that she would lose her very wanted pregnancy. However, because the fetus still had a heartbeat, and she was not yet in life-threatening danger, she was denied care until she developed sepsis and nearly lost her life. The bottom line is this: life and health exceptions inappropriately insert the state’s judgment into medical decisionmaking and both providers and patients are forced to bear the consequences. 

With respect to exceptions for rape or incest, the few ban states that have these exceptions often require the victim to report the violation to law enforcement in order for the exception to apply. However, we know from decades of data that the majority of victims will not or cannot report the assault. This is especially true when we consider minors who are victimized by members of their own family or family friends; they are forced into an untenable and potentially unsafe situation in order to access abortion. 

Finally, it is worth considering how conversations focusing on exceptions shift the conversation away from the very real harms that abortion bans cause for individuals who do not fit within any exception but still require and deserve safe healthcare. Certainly, stories of pregnant people in emergency circumstances or those who have faced assault highlight the cruelty of these laws. However, all abortion is a deeply personal choice, and it is crucial that our advocacy views all reproductive care as equally valid and worthy, regardless of the circumstances that necessitate it.