Insight

Post-Dobbs, States Seek to Define Laws Around Abortion Access

July 14, 2022

The US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization put the onus on states to define laws around access to abortion-related services. As expected, the two largest sources of action following the decision—beyond US President Joe Biden’s July 8 executive order on abortion access—have been state-level litigation challenging abortion restrictions and executive actions in states that support abortion access.

State-Level Litigation

State injunctions blocking the enforcement of laws in Louisiana and Florida were lifted, a new injunction against enforcement was issued in Idaho, and the Texas Supreme Court upheld part of a temporary injunction against enforcement of the state’s pre-Roe criminal ban. 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.

State-Level Executive Orders

Democratic governors in Colorado, Maine, North Carolina, Pennsylvania, and Rhode Island issued executive orders protecting abortion providers in their states and barring state agencies from cooperating with out-of-state investigations into persons who seek abortions or abortion services.

Presidential Executive Order

In addition, the White House released an order directing

  • the secretary of the US Department of Health and Human Services to increase outreach and education about reproductive healthcare services and identify potential actions for protecting and expanding access to abortion care, including medication abortion, and reproductive healthcare services such as family planning and emergency contraception;
  • the US attorney general and White House counsel to convene a meeting of private attorneys and encourage lawyers to represent and assist patients, providers, and third parties lawfully seeking reproductive healthcare services;
  • the US attorney general and the secretary of the US Department of Homeland Security to consider actions to ensure the safety of patients, providers, and third parties and to protect the security of clinics and pharmacies providing reproductive healthcare services;
  • the chair of the Federal Trade Commission to consider actions to protect consumer privacy in relation to reproductive healthcare services; and
  • the secretary of Health and Human Services to consider actions under the Health Insurance Portability and Accountability Act (HIPAA) to protect sensitive information related to reproductive healthcare services.

State Legislation

Indiana plans to  hold a special session considering abortion legislation and inflation relief measures on July 25, 2022. The governor of South Dakota also announced plans to pursue a special legislative session on abortion restrictions, but did not specify a date for convening. The governor of Virginia further declared that he would introduce and support a 15-week ban on abortion during the next legislative session.

The Pennsylvania legislature approved a number of changes to the state constitution on July 8, including language saying the state constitution does not grant the right to taxpayer-funded abortion or any other right relating to abortion. The measure does not require the approval of the governor but would need to be voted on by the public and then reapproved in a following session to be ratified.

Additionally, Ohio Rep. Gary Glick introduced a bill on July 11 that would require Ohio law to recognize the personhood and constitutional rights of all persons from the moment of conception. The level of support for this effort is unclear, but Ohio’s legislature is in session year-round, so action could occur at any point.

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