Insight

Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of August 23

August 23, 2022

Litigation over the effectiveness of various state abortion laws and state legislative efforts continues as we near two months after the US Supreme Court’s Dobbs ruling. The last of the state trigger laws are set to go into effect on August 25 absent judicial injunctions, and in the last week, there were major legislative developments in South Carolina and important court rulings in North Carolina and South Carolina. This Insight provides updates as of August 23, 2022.

State Legislative Efforts

South Carolina

The South Carolina House Judiciary Committee approved H. 5399 on Tuesday. Recommended by the Ad Hoc Committee on Abortion on July 19, the bill would make it unlawful for any person to knowingly administer, prescribe, or pay for any medicine, drug, or other substance or employ any method with the specific intent of causing or abetting abortion except when necessary to protect the life of the mother, in cases of ectopic pregnancy, or to remove a miscarried fetus. The bill would also make it unlawful for a person who is not licensed in South Carolina to prescribe abortion medication within the state.

Violations are punishable by up to two years’ imprisonment and fines up to $10,000. The South Carolina attorney general is further authorized to bring civil actions seeking fines up to $10,000 per violation. Penalties do not apply to the woman upon whom the abortion is performed. There are no rape or incest exceptions. The South Carolina House of Delegates subsequently announced that it would hold a floor session on August 30, 2022, presumably to consider the bill.

The South Carolina Senate Medical Affairs Committee held a public hearing on S. 1373 on August 18, 2022. S. 1373 is an extremely restrictive bill modeled after legislation proposed by the National Right to Life Committee. It would make it unlawful to knowingly or intentionally perform an abortion, aid or abet or conspire to perform an unlawful abortion, manufacture an abortifacient or possess one for sale, and/or invest in, be employed by or otherwise participate in an entity engaged in prohibited abortion activity. The Medical Affairs Committee intends to issue a report and recommendation to the State Senate by September 6, 2022, when it is scheduled to hold a floor session.

All indications are that the legislation advanced by the South Carolina House, H. 5399, is the most likely to be given further consideration. In a statement issued the day after the Medical Affairs Committee hearing, South Carolina Governor Henry McMaster said he was “confident that [S. 1373] would not pass the House or Senate.” South Carolina Senate Majority Leader Shane Massey has also said that “[t]here is no support” for the more extreme provisions in S. 1373.

West Virginia

News reports indicate that negotiations are still ongoing over new abortion legislation in West Virginia. The West Virginia legislature convened for a special session on July 25, 2022, to consider abortion legislation.

The West Virginia House of Delegates passed a bill that would prohibit abortion in all cases except to treat a medical emergency, remove a nonviable fetus, or treat an ectopic pregnancy. The bill would also permit abortions up to 14 weeks post-fertilization in cases of sexual assault or incest. The West Virginia Senate enacted an amended version that would permit abortions only up to 8 weeks post-fertilization in cases of sexual assault or incest. Both chambers went into recess without settling on a compromise. Legislative leaders have not yet set a date for the legislature to return.

Ohio

The Ohio state legislature will reportedly return for a session one week after the November 8, 2022, election. Abortion legislation will likely be a topic of debate, but it is not clear if there is sufficient support in the Ohio legislature to enact any restrictions.

State and Federal Litigation

Federal courts continue to lift injunctions against abortion bans that were imposed pursuant to the precedents set by Roe and Casey.

On August 18, 2022, a federal district court removed an injunction against a 20-week abortion ban passed by North Carolina in 2019. The attorney general of North Carolina had refused to ask the court to lift the injunction after Dobbs was released so state legislative leaders filed their own petition. The district judge ultimately removed the injunction against the recommendation of all parties to the original suit, saying they had no right to ignore the law as determined by the US Supreme Court. North Carolina district attorneys, who are independently elected, may now enforce the law.

Meanwhile, state courts continue to grapple with challenges alleging that abortion bans violate state constitutional protections. The South Carolina State Supreme Court, for instance, temporarily blocked enforcement of South Carolina’s existing fetal heartbeat law on August 19, 2022. The court did not comment on the merits of the challenge but noted that the law could implicate privacy protections in the South Carolina State Constitution.

Similarly, on August 9, 2022, the Montana State Supreme Court upheld a lower court’s temporary injunction against a set of laws passed in 2021 that would ban abortion after 20 weeks and limit access to abortion medication. The Montana State Constitution includes an explicit right to privacy and the Montana State Supreme Court has held in the past that this right to privacy protects access to abortion services.

Finally, the Idaho State Supreme Court ruled that Idaho’s trigger law could go into effect as planned on August 25, 2022. Abortion providers, challenging the law under the Idaho State Constitution, had sought a temporary injunction against enforcement while the litigation proceeded. The Idaho Supreme Court rejected that request in its August 12 ruling. The US Department of Justice also has a federal lawsuit pending against the Idaho law, alleging that the law violates the Emergency Medical Treatment and Labor Act.

Idaho, Tennessee, and Texas Trigger Laws Take Effect August 25

The trigger mechanisms in the Idaho, Tennessee, and Texas laws provided that they would be effective 30 days after the Supreme Court issued a final judgment in a case that overturned Roe and Casey. The final judgment in Dobbs was not released until late July, pushing the effective dates of these laws back to August 25. These laws, which ban all forms of abortion except in cases of medical emergency, will become enforceable absent a court order saying otherwise.

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
Saghi (Sage) Fattahian
Jonathan Zimmerman