Developments in Abortion, Autonomy, and Access:
Welcome back and Happy New Year! We thank you for your patience while we were closed over the holidays. The break gave us all at L4GG a much-needed chance to rest and restore before hitting the ground running in 2024. As you know all too well if you read this newsletter, 2023 was a critical and devastating year for bodily autonomy. As this new year begins, we are keeping a close eye on bills coming out of state legislative sessions, ballot initiatives that will go before voters this year, ongoing litigation, and–of course–the reproductive rights politics surrounding the 2024 presidential election. We are starting this year ready and energized to fight back against anti-choice attacks and misinformation and to support the right for everyone to be safe and free in their body.
To stay up to date on reproductive health policy during this crucial year, please consider registering for our Policy Resource Hub for Reproductive Health, available at L4GG.org/Repro. The Hub contains our state abortion law research database, which is updated daily and explains the state of abortion law in every single U.S. state and territory. The Hub also includes our constantly growing media bank of thousands of searchable reproductive health-related articles, and the archive of every issue of the Repro Health Digest. We look forward to seeing you there!
Legal Changes at the State Level:
Brief Overview:
EMTALA in Idaho and Texas: Federal courts out of Idaho and Texas have come to differing conclusions about whether the Emergency Medical Treatment and Labor Act’s stabilizing care requirement preempts state abortion bans. The U.S. Supreme Court will consider the Idaho-based challenge in April.
Kentucky: In our last digest, we reported on a lawsuit brought directly by a Kentucky woman challenging the State’s abortion ban. However, in late December, lawyers for the plaintiff voluntarily dropped the lawsuit after the fetus lost cardiac activity. Lawyers for the ACLU and Planned Parenthood are now seeking other potential plaintiffs to challenge the State’s ban. Historically, cases challenging abortion restrictions were brought by providers and clinics rather than the patients themselves; however, post-Dobbs, state courts, and anti-abortion activists have argued that these parties do not have standing to challenge the laws. Cases brought directly by pregnant people avoid this potential roadblock.
Ohio Update: As we have reported on extensively in this Digest, last year Ohio passed Issue 1, enshrining “pre-viability” abortion rights into the State’s Constitution. Although Issue 1 officially took effect on December 7th of last year, contradictory laws remain on the books, including the state’s fetal heartbeat ban. However, late last year, the State’s Supreme Court dismissed the State’s attempt to enforce the near-total ban, citing a change in the law. The case now goes back down to a lower court for further litigation.
North Carolina: In North Carolina, advocates presented arguments challenging the state’s restrictions on the use and distribution of mifepristone, which exceed the FDA’s more permissive regulations of the drug.
Alliance for Hippocratic Medicine v. FDA Update: Judge Matthew Kascmaryk has granted Kansas, Idaho, and Missouri’s motions to intervene in the case challenging the FDA’s approval of mifepristone. Their inclusion threatens to complicate the argument that the current plaintiffs lack standing.
Idaho: The injunction blocking enforcement of Idaho’s abortion trafficking law has been upheld for the time being. In an earlier decision enjoining the law, Judge Debora K. Grasham articulated that “abortion trafficking is not a thing,” because the procedure remains legal in other states. She further explained that while Idaho is free to criminalize abortion and human trafficking, it cannot “craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights.” Arguments surrounding interstate travel for abortion are a unique feature of the post-Dobbs legal landscape, and we will be closely tracking their development as they wind their way through the courts this year.
Ohio and Brittany Watts: Ohio woman Brittany Watts will not be indicted on charges related to her miscarriage. Although this is the obvious correct outcome of her case, the fact that the case was brought at all sounds alarm bells about increased surveillance and the criminalization of pregnancy outcomes.
Legal Analysis:
Idaho, Texas, and EMTALA:
Litigation about states’ obligations to provide stabilizing abortions when necessary under the federal Emergency Medical Treatment and Labor Act (EMTALA) will reach the U.S. Supreme Court.
After the 2022 Dobbs decision overturned Roe v. Wade, states including Texas and Idaho swiftly enacted total or near-total abortion bans, with extremely narrow exceptions to save the life or health of the pregnant person. In response, the Biden Administration issued guidance explaining that EMTALA’s requirement that hospitals receiving medicare funds provide stabilizing care to any emergency patient preempts state abortion bans. In other words, if the treating providers determine that an abortion is what is needed to stabilize a patient, EMTALA requires them to provide that care even in ban states. Both Idaho and Texas challenged this guidance.
In Idaho, a lower court issued an injunction against the state’s abortion ban, insulating emergency room providers from legal risk in cases where they perform an abortion to save a patient’s life. However, in early January, the Supreme Court issued a ruling rolling back that injunction and allowing the law to take full effect while litigation plays out. The Justices indicated that they will hear oral arguments on the matter in April of this year.
In a nearly identical case out of Texas, the Fifth Circuit Court of Appeals sided with the State, finding that EMTALA cannot be enforced over state abortion bans, even in emergency cases. Rabia Muqaddam, an attorney with the Center for Reproductive Rights, explained that the Fifth Circuit’s interpretation was a “radical narrowing” of the law and essentially means that everyone in an emergency room is entitled to stabilizing care “unless they happen to be a pregnant person who needs an emergency abortion to be stabilized.” Under norms of statutory construction, a federal statute almost always takes precedence over a conflicting state statute; however, the courts appear willing to turn established precedent on its head if it means removing protections for pregnant people. Although the Fifth Circuit’s ruling largely narrows EMTALA’s scope, it seems to expand the law in one striking way–the Court’s Opinion takes the position that EMTALA’s requirements apply with equal strength to both the pregnant person and the fetus, stating that “EMTALA imposes obligations on physicians with respect to both the pregnant woman and her unborn child . . . [t]his is a dual requirement.” This suggested expansion of EMTALA obligations jeopardizes emergency medical care for pregnant people and places providers in an even more untenable position.
It is important to note that, for now, EMTALA protections remain in place in all other states, as the courts’ rulings are currently limited to Idaho and Texas. However, with the Supreme Court set to consider Idaho’s appeal in April, that could change before the year is up.
North Carolina:
Advocates in North Carolina presented arguments this week in a lawsuit challenging the State’s restrictions on medication abortion. These restrictions exceed the FDA’s own regulations on the drug and have drawn criticism for going beyond what is medically necessary to ensure safety. FDA regulations currently allow mifepristone to be prescribed up to 70 days (10 weeks) of pregnancy, and permit it to be distributed via telehealth without a mandatory waiting period. In contrast, North Carolina requires patients to first have a consultation and then wait 72 hours prior to having the drug administered in person in specified facilities. In some cases, the State also mandates an ultrasound prior to prescribing the medication.
The plaintiffs in the case argue that these requirements create medically unnecessary burdens to care and conflict with clear FDA guidance, which specifically considered and rejected the idea that mifepristone must be distributed in person. The Defendants argued in response that the FDA’s regulations are a ‘floor’ and that states are free to build off on them with their own additional restrictions. This North Carolina case occurs against the backdrop of a looming Supreme Court determination about the propriety of the FDA’s approval of mifepristone, as well as ongoing arguments about how to reconcile state and federal law with respect to abortion. Depending on how the Supreme Court rules in these cases, we could see a significant shift in the legal landscape surrounding the regulation of medicine.
Alliance for Hippocratic Medicine v. FDA:
Judge Matthew Kascmaryk, the Trump-appointed Texas judge who drew criticism for his anti-abortion rulings in Alliance for Hippocratic Medicine v. FDA has granted 3 states’ motions to intervene in the lawsuit. Republican-led Idaho, Missouri, and Kansas successfully argued that they are appropriate parties to the case because their states’ interests are purportedly affected by the FDA’s approval of mifepristone. Their addition complicates a key argument in the ongoing litigation: that the provider and provider groups who brought the lawsuit do not have standing to challenge the FDA’s regulations. With the intervention of these states, even if the Supreme Court agrees that the original plaintiffs lack standing, the states could attempt to keep the case alive based on their own independent allegations.
Medication abortion accounts for more than half of all abortions in the U.S., and with many states severely limiting or outright banning abortion, telemedicine has become increasingly critical post-Dobbs. Clinics, advocates, and individuals are all bracing for a Supreme Court ruling limiting access to medication abortion, and exploring options for how to mitigate the harm that will inevitably follow. Providers are preparing to switch to a misoprostol-only regimen, in lieu of the current two-medication process. And advance orders of mifepristone are likely to surge in the coming months, as they have previously when access in a particular state or region has been imminently threatened.
Ohio and Brittany Watts:
Although we typically use this section of the Digest to analyze changes to state law, Brittany Watts’ story deserves to be told, and its implications for reproductive justice and pregnancy criminalization are critical to discuss and understand. Brittany Watts is a 34-year-old Ohio woman who faced felony criminal charges for her handling of a miscarriage that occurred in the bathroom of her own home. Last week, a grand jury declined to indict Ms. Watts, and while that is absolutely the correct result, the reality is that this should have never happened in the first place.
Last September, Ms. Watts, who was nearly 22 weeks pregnant at the time, was admitted to the hospital for vaginal bleeding. Her doctors determined that her water had broken prematurely and that her pregnancy was unfortunately no longer viable. Ultimately, Ms. Watts miscarried at home in her bathroom. She then went to the hospital where she had a D&C procedure to remove the remaining placental tissue. During this hospital visit, a nurse called the local police department.
Police responding to that call went to Ms. Watts’ home and retrieved the fetal remains from the toilet. An autopsy confirmed what Ms. Watts and her doctors already knew: that the fetus had died in utero following a premature rupture of the membranes. Regardless, in October, Ms. Watts was charged with the felony of “abuse of a corpse.” In supporting the charges, prosecutors argued that the issue wasn’t “how the child died, when the child died” but “the fact that the baby was put into a toilet, was large enough to clog up the toilet, left in the toilet, and she went on [with] her day.” This argument demonstrates a stunning lack of understanding and empathy about the heartbreakingly common experience of miscarriage. And the charge itself raises important legal questions about fetal personhood. Generally, common law does not consider a fetus a human being for purposes of abuse of a corpse until after birth. Expanding the scope of that law to circumstances of miscarriage would create a near-limitless increase in the potential for the criminalization of pregnancy outcomes.
The grand jury’s determination that Ms. Watts should not be indicted is the obvious and just conclusion. But, the fact that these charges were brought at all is chilling. Pregnant people miscarry alone in their homes every day. They should not have to fear that their miscarriage might lead to accusations of criminal conduct or that a visit to their doctor for post-miscarriage care could lead to a call to law enforcement. The criminalization of pregnancy outcomes is very real and all too common. As Ms. Watts’ home state amends its constitution to protect access to abortion, stories like hers are a reminder that the fight for reproductive justice affects all aspects of reproductive care and equity–and that it is far from over.
More News in Access:
As we consider how to vote in 2024, please take a moment to read this piece from Rolling Stone about the official Republican plan to restrict access to abortion, and contraception and to increase surveillance of pregnant people and pregnancy outcomes.
A Virginia legislator has introduced a bill that, if passed, would ban abortion entirely with a narrow exception to save the life of the pregnant person. Thanks to last year’s elections, democrats control both houses of the state legislature, so the bill is unlikely to pass into law.
A coalition of Missouri abortion rights groups has finalized language for a proposed ballot measure to protect reproductive rights in the state. The measure would protect the right to abortion up until “fetal viability,” with exceptions for the life or health of the pregnant person throughout pregnancy.
Amarillo may be the next Texas city to ban so-called “abortion trafficking,” following the lead of several other cities and localities. This tactic of restricting travel is one of the latest anti-choice strategies aimed at stopping pregnant people from traveling out of ban states to access care.
In Indiana, a new report shows that only 17 pregnant people have been able to obtain an abortion in the state since its total abortion ban went into effect last August. This number clearly demonstrates a fact that we talk about a great deal in this newsletter: abortion exceptions do not actually increase access to care.
The 11th Circuit Court of Appeals allowed Alabama’s ban on gender-affirming care to take effect during the pendency of litigation.
A Seattle lawsuit alleges that the Texas Attorney General requested medical records for minors from Texas who received gender-affirming care.
In the first post-Dobbs presidential election year, how reproductive rights affect voters' choices in the ballot box is top of mind, and research shows that many Republicans support access to abortion even while they support anti-choice candidates.
The U.S. Supreme Court has declined to hear a case about whether a school district can force trans students to use the restroom that corresponds with their sex assigned at birth.
Arizona abortion advocates are facing pushback on their proposed ballot initiative from a campaign called “It Goes Too Far.”
Ohio Governor Mike DeWine vetoed the state legislature’s passage of a gender-affirming care ban for minors. However, shortly after the veto, he signed an Executive Order heavily restricting access to certain types of gender-affirming care. And, the Ohio House has now voted to override the Governor’s veto altogether. At this time, advocates are calling for the state legislature to uphold the veto.
In Kentucky, a bill has been proposed that would allow pregnant people to collect child support during pregnancy. Although at first glance this may seem like a move to support parents, laws that define a fetus as having the same rights as a born child are a dangerous tactic employed by anti-choice activists wishing to slowly change the legal landscape. We will be watching for these kinds of bills as states return to their legislative sessions this year.
Florida advocates have officially collected enough signatures for their ballot initiative to go before voters.
The Iowa Board of Medicine is considering changes to proposed rules about how to implement the state’s abortion restrictions. We previously reported on how the original draft of the proposed rules would undermine the practice of medicine and the doctor-patient relationship.
This piece from the New Yorker takes a look at how one young woman may have lost her life as a result of Texas’s restrictive abortion laws and the chilling effect that they have on healthcare providers. We must remember her story as we continue the fight for everyone’s right to autonomy over their own body.
