Insight

Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of October 11

October 11, 2022

We are now more than 100 days out from the release of the Dobbs decision and the laws around reproductive rights remain in flux.

A federal judge in Texas heard arguments in a case seeking a temporary injunction against the enforcement of Texas’s various abortion laws. In addition, a state appeals court in Arizona reissued an injunction against the state’s pre-Roe criminal law and a state judge in Ohio issued a preliminary injunction against enforcement of Ohio’s fetal heartbeat law.

State legislatures also continue to grapple with these issues. California Governor Gavin Newsom signed a slate of bills designed to protect access to reproductive health services, including an expansive data protection law and a ban on employment discrimination based on the use of reproductive services. Legislators in South Carolina and Wisconsin convened for special sessions to consider abortion-related legislation, though neither led to concrete results.

State Legislation

California

California Governor Newsom signed a series of bills related to reproductive services on September 27, 2022.

The most significant is likely AB 1242, which prohibits California corporations that provide electronic communications services or remote computing services from cooperating with out-of-state entities investigating receipt of abortion services that are lawful in California. That includes turning over records that would reveal the identity of customers using the electronic communication or remote computing services, data stored by or on behalf of those customers, or the content of those customers’ communications. The bill’s definition of California corporation includes corporations whose principal executive offices are located in California.

Another bill, SB 523, amends the California Fair Employment and Housing Act (FEHA) to explicitly prohibit discrimination on the basis of “reproductive health decisionmaking” in employment. The bill defines “reproductive health decisionmaking” as a decision to access a particular drug, device, product, or medical service for reproductive health.

The laws go into effect January 1, 2023.

South Carolina

The South Carolina House of Representatives convened on September 27, 2022, to consider amendments to the state’s existing abortion law passed by the state Senate. The amendments were voted down by a wide margin, mainly due to opposition from the Republicans who want the Senate to approve the near-total ban on abortion passed by the House in late August.

The state Senate announced this week that it would convene on October 18 to reconsider the restrictive bill passed by the House in late August. It is not clear whether the Senate will try once again to pass the House bill or simply reenact its compromise amendments. The session will coincide with a hearing in front of the South Carolina Supreme Court on the state’s existing fetal heartbeat law, which is temporarily enjoined from enforcement.

Wisconsin

Wisconsin Governor Tony Evers called the Republican-led state assembly into a special session on October 4 to consider a law that would permit Wisconsin voters to hold binding referenda on state laws. Governor Evers framed the measure as a path for voters to repeal Wisconsin’s pre-Roe criminal law, which bars nearly all forms of abortion after conception.

The legislature held a perfunctory session on October 4 as required and quickly adjourned without seriously considering the proposal. A similar result occurred when Governor Evers called the legislature into session in June to consider repealing the pre-Roe law.

Wisconsin is not currently enforcing the pre-Roe ban, though it is technically in effect. The Wisconsin attorney general has filed litigation seeking a permanent injunction against enforcement of the law. Republicans in the legislature have opposed these efforts.

Federal and State Litigation

Texas

A federal district court in Texas held an initial hearing on a motion for a temporary injunction in a case filed by Texas abortion support funds and providers against the Texas attorney general on September 27, 2022. The support funds and providers are seeking an injunction against enforcement of Texas’s various abortion laws to the extent those laws would prohibit the plaintiffs from assisting Texans seeking lawful out-of-state abortions or providing information on how to access lawful out-of-state abortions.

Interest in the case is high given the importance of the questions it raises; a number of parties have filed amicus briefs, including one on behalf of 21 state attorneys general, in support of the plaintiffs.

Arizona

A three-judge panel of the Arizona Court of Appeals reissued an injunction against Arizona’s restrictive pre-Roe criminal law on October 7.

A September 23 ruling by Pima County Superior Court Judge Kellie Johnson had lifted the 1973 injunction against the pre­-Roe law, which criminalizes nearly all abortion after conception except when necessary to save the life of the pregnant person. Judge Johnson had determined that the 1973 injunction was based entirely on the US Supreme Court’s decision in Roe and there was no reason to keep it in place once Roe was overturned.

The appellate panel, however, found that Judge Johnson’s ruling gave insufficient weight to the statutes implemented since the 1973 injunction, including a 15-week ban passed in 2022, and the need to harmonize Arizona laws on this issue. The injunction will remain in place pending the resolution of the appeal unless it is overturned by the Arizona Supreme Court.

Ohio

A state judge in Ohio issued a preliminary injunction against enforcement of the state’s fetal heartbeat law in an oral ruling announced on October 7. The fetal heartbeat law was passed in 2019 and prohibits nearly all forms of abortion once a fetal heartbeat is detected.

The same judge had previously issued a temporary restraining order against enforcement, finding that the law likely violated rights protected by the Ohio Constitution. The injunction will remain in place for the duration of the litigation challenging the fetal heartbeat law unless it is overturned on appeal.

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:

Sharon Perley Masling
E. Pierce Blue
Saghi (Sage) Fattahian
Jonathan Zimmerman