Insight

Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of July 19

July 19, 2022

The weeks after the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization decision have seen an array of federal and state actions on the issue of access to abortion-related services, including new legislation, executive actions, and litigation. This Insight provides updates as of July 19, 2022.

State-Level Litigation and Efforts to Revive Pre-Roe Bans

A state court reimposed a temporary injunction on Louisiana’s trigger law, a Utah state judge extended a temporary injunction against the state’s trigger law until the conclusion of litigation, and a state judge in West Virginia temporarily blocked enforcement of the state’s pre-Roe ban on abortion. These join full or partial injunctions on enforcement against state abortion laws in Idaho, Kentucky, and Texas. Litigation continues in nearly every state where these bans are in place, and we expect the status of these laws to remain in flux for several months.

Attorneys general in Arizona and Texas are also engaged in litigation seeking to revive pre-Roe bans on abortion. Texas has a trigger law that will effectively criminalize all abortion once a final judgment is issued in Dobbs, but that will likely not occur until mid-August. In the interim, the Texas attorney general has announced an intention to use the pre-Roe law to bar the practice criminally. That effort is currently under review by the Texas Supreme Court.

Arizona already has a criminal law in effect that bans abortion after 15 weeks. The Arizona attorney general, however, is asking a state court to lift an injunction against enforcement of Arizona’s much broader pre-Roe abortion ban that effectively criminalizes all abortion and prohibits the advertisement of abortion services.

State-Level Executive Orders

Democratic governors in Pennsylvania and Michigan joined colleagues in Colorado, Maine, Nevada, North Carolina, and Rhode Island in issuing executive orders that seek to protect abortion providers in their states. Most of the executive orders declare that the governor will refuse requests for extradition in out-of-state cases involving reproductive health services and include provisions barring state agencies from cooperating with out-of-state investigations into persons who seek abortions or abortion services.

Federal Action and State Response

The Biden-Harris administration issued guidance on July 11 arguing that the Emergency Medical Treatment and Labor Act (EMTALA) requires that hospitals provide abortion services to patients when necessary due to emergency medical conditions, irrespective of state laws on abortion. The administration also issued guidance to national retail pharmacies suggesting that denying access to abortion medication could violate federal laws against discrimination on the basis of sex and disability in health services in certain cases.

The Texas attorney general filed a lawsuit seeking to enjoin the EMTALA guidance, arguing that the federal government lacks the authority to issue guidance or regulations under EMTALA, and that even if it had such authority, such action violates Administrative Procedure Act requirements.

Finally, the US House of Representatives passed legislation that would protect a person’s right to travel across state lines for abortion services and would allow healthcare workers the right to provide abortion services regardless of state bans. Neither bill is expected to pass the Senate.

State Legislation

Indiana plans to hold a special session considering abortion legislation on July 25, 2022. Indiana legislators have yet to release a draft of the legislation they will consider, but media reports speculate that it will closely resemble model legislation advocated by the National Right to Life Committee, including broad prohibitions on “aiding and abetting” abortion that covers employer-provided healthcare. Indiana State Representative Matt Hostettler also released a statement urging colleagues to use the special session to pass legislation starting the constitutional amendment process for a provision that would bar “on-demand” abortion.

South Carolina has also formed an ad hoc committee to consider and develop new abortion legislation while the chamber is adjourned. The committee held its first hearing on July 7 and will hold its second, and possibly final, hearing on July 19. Testimony at the first hearing focused on the appropriate scope of exceptions to general abortion bans and included testimony from The Bopp Law Firm, counsel to the National Right to Life Committee. The ad hoc committee will eventually recommend text for a placeholder bill, H. 5399, that the chamber will consider when it returns as scheduled or is called back for a special session.

We will continue to monitor developments in this area and provide updates as new information becomes available. Please feel free to reach out with specific questions or for more tailored advice regarding specific state prohibitions.

Reproductive Rights: Post–Dobbs Impact

Our Reproductive Rights Task Force is closely monitoring and analyzing the impact of state laws regulating abortion access to advise clients on how best to respond. Visit our centralized portal, which aggregates our insights and analyses of Dobbs and its subsequent influence on state laws throughout the United States.

Contacts

If you have any questions or would like more information on the issues discussed in this Insight, please contact any of the following Morgan Lewis lawyers:

Sharon Perley Masling
E. Pierce Blue
Sage Fattahian
Jonathan Zimmerman