Insight

Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of May 2023

May 03, 2023

It has been almost a year since the US Supreme Court held in Dobbs v. Jackson Women’s Health Organization that there was no constitutional right to abortion and returned the question of abortion to the states, resulting in a proliferation of legislation across the country banning, restricting, expanding, or protecting access to abortion. The Supreme Court is again at the center of the abortion debate, this time regarding the legality of mifepristone, one of two drugs commonly used in medication abortion, which is reportedly the method used for more than half of all abortions in the United States.

Renewed Focus on Abortion Medication

Post-Dobbs, there has been a renewed focus on abortion medication, in part as a means of expanding access to abortion, especially for those in states with restrictive abortion laws.

Most recently Judge Kacsmaryk, a federal judge in the US District Court for the Northern District of Texas, issued an order that effectively invalidated the US Food and Drug Administration’s (FDA’s) 2000 approval of mifepristone, despite more than 20 years of public health data proving its safety. The FDA appealed that ruling to the US Court of Appeals for the Fifth Circuit, which found that mifepristone could remain on the market, but that it could only be used up to seven weeks of pregnancy, rather than 10 weeks as the FDA had previously approved, and could not be prescribed via telehealth services—which was also approved by the FDA in 2016. The Fifth Circuit ruling was then appealed to the Supreme Court.

On April 21, 2023, in a 7-2 decision, the Court stayed Judge Kacsmaryk’s order and that of the Fifth Circuit Court of Appeals in Alliance for Hippocratic Medicine v. FDA, preserving access to mifepristone in states where it can be legally prescribed and allowing it to remain on the market nationwide while the appeals process proceeds in the Fifth Circuit. Justices Alito and Thomas dissented. Oral argument in the Fifth Circuit is currently scheduled for May 17. The case will almost certainly end up back in the Supreme Court as appeals will swiftly follow any subsequent ruling.

On the same day that Judge Kacsmaryk issued his decision in Texas, Judge Rice, a federal judge in the US District Court for the Eastern District of Washington, issued an order in State of Washington et al. v. FDA et al. blocking the FDA from taking any steps to restrict access to mifepristone in the District of Columbia or any of the 17 states that filed suit.

Moreover, in response to the Fifth Circuit and Judge Kacsmaryk’s orders, states such as California, Massachusetts, New York, and Washington took affirmative steps to stockpile mifepristone, while governors in Connecticut, Maine, and Oregon made clear that they are evaluating options to protect access to and ensure the availability of abortion medication.

Other states, however, restricted abortion medications. For instance, Wyoming became the first state to explicitly ban the use of any drug, including mifepristone, for abortions, while others[1] provide that abortion medication can only be dispensed by a physician,[2] can only be prescribed in connection with an in-person physician visit,[3] and cannot be mailed.[4] Five other states, Iowa, Kansas, Arkansas, Texas, and North Dakota, have proposed legislation prohibiting the use, manufacture, and prescription of abortifacient drugs, including mifepristone and misoprostol.

Although these proposed laws don’t explicitly apply to employer insurance benefit plans, there is some risk that plans covering abortifacients within these states could be charged with violating the law, though any such application would likely be subject to litigation.

Laws Restricting Reproductive Rights

Changes, challenges, and some confusion continue as the reproductive health law landscape evolves.

As of this writing, 25 states have active laws that restrict abortion access beyond the limits imposed by Roe and Casey. Of those, 13 states[5] have near-total bans that prohibit and criminalize almost all forms of abortion. Another eight states[6] have similar bans that have been blocked or are temporarily enjoined pending the resolution of legal challenges to their constitutionality under state law.

Other states prohibit abortion based on gestational limits. Georgia prohibits abortion after the detection of a fetal heartbeat, i.e., after six weeks of pregnancy; the law, however, is subject to ongoing litigation.[7] Florida recently enacted a six-week abortion ban, but it has not yet gone into effect as the state’s Supreme Court reviews its current abortion laws, including its 15-week abortion ban. Arizona prohibits abortion after 15 weeks, while Utah bans abortion after 18 weeks and will soon stop issuing licenses for abortion clinics and require that abortion procedures take place in a hospital. North Carolina prohibits abortion after 20 weeks.

Legislators in Republican-led Nebraska and South Carolina, both of which currently allow abortion up to 22 weeks, have repeatedly tried to enact near-total abortion bans, but their efforts have not yet been successful.

While most state abortion laws are criminal laws, Texas, Idaho, and Oklahoma also have civil enforcement laws. The Texas and Oklahoma laws also explicitly classify employer reimbursement of abortion expenses as unlawful aiding and abetting of an abortion. As these laws are relatively new, they have not yet been fully tested nor their full impact realized.

Laws Protecting Reproductive Rights

In contrast to those states banning or significantly restricting access to abortion, 19 states[8] and the District of Columbia have active laws or constitutional protections that guarantee a right to abortion at some stage of pregnancy. Fifteen of those states[9] protect access through statutes. Three states[10] have binding high court precedent finding a right to abortion in state constitutions. California, Michigan, and Vermont have constitutional amendments that enshrine the right to reproductive freedom, including abortion. The Maryland legislature voted to place a constitutional amendment protecting the right to abortion on the ballot in 2024.

The scope of protections provided in these states varies but all permit abortion until at least 24 weeks post-fertilization, the “viability” limit recognized by Casey.

Nine states[11] have enacted “shield” laws that provide various levels of legal protections for abortion providers and persons seeking abortions in their states. Another 12 states[12] have issued executive orders intended to protect providers and expand access. Nearly all these laws and orders prohibit state agencies and courts from cooperating with out-of-state investigations into the receipt or provision of reproductive health services, enforcing subpoenas or summonses from out-of-state courts or grand juries related to the receipt of reproductive health services, and honoring requests for extradition when the charge involves the receipt of lawful reproductive health services.

California also recently enacted a law that prohibits California corporations or corporations whose principal executive offices are in California from providing records and data in response to out-of-state subpoenas or court orders relating to the investigation into or enforcement of laws prohibiting reproductive health services that are lawful in California.

Federal Actions

Post-Dobbs, the Biden administration has taken steps to enhance access to reproductive healthcare. For example, in April 2023 the US Department of Health and Human Services issued a notice of proposed rulemaking to amend HIPAA’s privacy rules to preclude healthcare providers and insurers from disclosing protected health information to state officials for the purpose of investigating, suing, or prosecuting an individual for seeking or providing an abortion.

In addition, the US Department of Justice filed suit against Idaho in summer 2022, arguing that the state’s near-total abortion ban is preempted, in part, by the Emergency Medical Treatment and Labor Act (EMTALA). Specifically, the DOJ said EMTALA’s requirement that hospitals provide emergency stabilizing care to prevent serious jeopardy to a patient’s health encompasses abortion services beyond that permitted by Idaho law. A federal district judge granted the DOJ’s request for an injunction that prohibits Idaho from enforcing its law in a manner that violates EMTALA while the case continues.

There were also efforts in Congress by supporters of abortion rights to enact legislation to create a statutory right to abortion services, as well as by abortion opponents to prohibit all abortion after 15 weeks. Neither had sufficient support to pass.

State Litigation

Challenges to state laws continue to percolate in the courts.

For example, in Kansas, the state Supreme Court signaled continued support for state constitutional protections for abortion during March 27 oral arguments in two lawsuits challenging a 2015 ban on the dilation and evacuation (D&E) procedure, which is used for abortions performed after 15 weeks of pregnancy, and a 2011 law that regulates abortion providers more strictly than other healthcare providers. A decision should be released in the next few months.

On March 28, the Georgia Supreme Court heard oral arguments in a case challenging the constitutionality of Georgia’s six-week abortion ban. In November 2022, a lower court struck down the ban, but the state’s high court reinstated the six-week ban until the case is resolved.

On April 3, Utah’s Planned Parenthood Association filed a motion for a preliminary injunction seeking to block key portions of Utah’s ban on abortions being performed anywhere but a hospital, which would essentially ban abortion in the state as most abortions are performed in licensed clinics, not hospitals. On May 2, the judge in the case ruled in favor of Planned Parenthood.

On April 10, Planned Parenthood and a Montana physician filed a lawsuit seeking a temporary restraining order and preliminary injunction to block Montana’s ban on D&E abortion procedures from taking effect.

Employers will need to continue monitoring this area closely to ensure that their policies and benefit plans comply with state and federal requirements.

Contacts

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

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[1] Twelve states—Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia—have abortion bans in effect that supersede any other restrictions on medication abortion.

[2] Alaska, Arizona, Florida, Georgia, Indiana, Iowa, Michigan, Nebraska, Nevada, North Dakota, North Carolina, Ohio, Pennsylvania, South Carolina, and Utah.

[3] Arizona, Indiana, Nebraska, North Carolina, North Dakota, and South Carolina.

[4] Arizona.

[5] Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin.

[6] Arizona, Iowa, Indiana, Montana, North Dakota, Ohio, Wyoming, and Utah.

[7] A lower court ruled that the ban was unconstitutional, but the Georgia Supreme Court reinstated the ban while an appeal of the ruling proceeds.

[8] California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

[9] Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Maine, Maryland, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

[10] Illinois, Massachusetts, and New Jersey.

[11] California, Connecticut, Illinois, Delaware, Massachusetts, Minnesota, New York, New Jersey, and Washington.

[12] California, Colorado, Hawaii, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Pennsylvania, and Rhode Island.