Insight

Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of October 26

October 27, 2022

Litigation and policy developments at the state and federal level continue as we approach the November election.

The Indiana State Supreme Court issued an order on October 12 upholding the temporary injunction on enforcement against the state’s recently enacted abortion law. Additionally, the Supreme Court of South Carolina heard oral arguments in a case challenging the state’s fetal heartbeat law on October 18. The laws in both states remain on hold pending final decisions in the cases.

In addition, the South Carolina Senate reaffirmed its objection to the near-total ban on abortion passed by the House, likely pushing the issue of amendments to the state’s abortion laws into next year. The governor of Hawaii also issued an executive order seeking to protect access to reproductive health services.

On the federal level, the US Department of Health and Human Services (HHS) confirmed on October 14 that its Office of Civil Rights was investigating retail pharmacies for allegedly refusing to stock and dispense medication related to abortion. Further, the US Department of Defense (DOD) released a comprehensive directive on access to reproductive healthcare for US service members on October 20.

Litigation

Indiana

Indiana became the first state to enact a new abortion law post-Dobbs when in August its legislature approved a near-total ban on abortion after conception. The law was immediately challenged by reproductive healthcare providers who argued that it violated rights protected by the Indiana Constitution. A state court judge agreed with those arguments and blocked the law a week after it took effect.

The Indiana attorney general subsequently appealed that decision to the Indiana State Supreme Court, asking it to stay the injunction and immediately take up the case instead of following the usual appeals process. In an order released on October 12, the court agreed to hear the case but refused to stay the lower court injunction. The order set oral arguments for January 12, 2023.

South Carolina

The South Carolina Supreme Court heard oral arguments in a case challenging the constitutionality of the state’s fetal heartbeat law on October 18. A decision is expected before the end of the year.

The court issued an order in August 2022 agreeing to hear the case. The court also issued a temporary injunction on enforcement to “maintain the status quo” pending the outcome of the litigation. The court did not opine on the likelihood that plaintiffs would succeed on the merits of their arguments in the order.

Federal Action

HHS Investigations

HHS stated on October 14 that its Office of Civil Rights had opened investigations into complaints that “chain pharmacies” across the United States are not complying with their obligations to fill prescriptions for medication tied to abortion.

The investigations stem from guidance the Office of Civil Rights issued to retail pharmacies in July 2022, which said the nondiscrimination provisions in the Affordable Care Act require pharmacies to stock and dispense these drugs when lawfully prescribed, including in states that may ban the sale or use of the medication for abortion. The statement from the secretary of HHS is the first public indication that the Office of Civil Rights is actively investigating these types of claims.

DOD Directive

The US secretary of defense issued a directive on October 20 on ensuring access to reproductive healthcare for US service members and their families post-Dobbs. The directive (1) creates new privacy protections for service members, (2) establishes a fund to support DOD healthcare providers who wish to transfer their state medical licenses or who face state disciplinary actions for performing official duties, and (3) expands contraception education and advertisement programs in the military health system. The directive also adopts a travel reimbursement program for service members and dependents who need to travel outside of their permanent duty station to receive reproductive healthcare.

Media reports note that the new policies will likely be subject to heavy debate when Congress takes up the annual National Defense Authorization Act later this year.

State Action

Hawaii

On October 11, Hawaii Governor David Y. Ige signed Executive Order 22-05, Protecting Access to Reproductive Health Care Services. The order prohibits Hawaii state agencies from providing information to, expending resources on, or otherwise cooperating with any inquiry, investigation, or proceeding by another state into a person or entity for providing or supporting reproductive healthcare that is legal in Hawaii. The order further states that it is the policy of Hawaii to decline requests for extradition in cases relating to the provision or support of reproductive healthcare services legal in Hawaii, and directs Hawaii boards of professional licensure to consider policies that will ensure no one is disqualified from licensure in Hawaii or disciplined due to the provision and support of reproductive healthcare services.

Hawaii is the 10th state to put such an order in place, joining Colorado, Maine, Massachusetts, Michigan, Nevada, New Mexico, North Carolina, Pennsylvania, and Rhode Island. In addition, California, Oregon, and Washington have signed an interstate compact with substantially similar pledges.

South Carolina

The South Carolina Senate returned to session on October 18 to reconsider the near-total ban on abortion after conception passed by the South Carolina House. The Senate again rejected the bill and insisted on more limited amendments to South Carolina’s existing fetal heartbeat law.

A conference committee comprising members of the House and Senate will now meet to see if a compromise can be reached on the issue. South Carolina’s legislature officially adjourns after the November election. If no compromise is reached by that date, the debate on abortion law will start anew in January 2023 when the next legislature convenes.

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