A Hectic Week for Abortion Policy With Laws and Lawsuits
AP News, March 23, 2023
Nine months after the U.S. Supreme Court ended a nationwide right to an abortion, the landscape is far from settled, with lawmakers considering broader bans or stronger protections and legal challenges popping up nationwide. It’s been a hectic week for abortion policy with Republican-dominated states seeking to tighten restrictions, Democratic lawmakers trying to protect abortion access — and court fights playing out on multiple fronts. Here’s what’s happening: WHAT’S THE STATUS OF ABORTION PILLS? This question lies at the heart of the most closely watched current abortion-related lawsuit. A combination of two drugs is the nation’s most common method for ending pregnancies. But Alliance Defending Freedom, which opposed abortion, has asked a Texas judge to revoke or suspend the U.S. Food and Drug Administration’s 2000 approval of one of the drugs, mifepristone. The legal question looms as the Biden Administration is working on rules to make the pills more widely available, and pharmacies and states sort out whether that will happen. After a hearing last week, U.S. District Judge Matthew Kacsmaryk, sitting in Amarillo, Texas, said he would rule “as soon as possible.” In the meantime, Wyoming Gov. Mark Gordon became the first in the nation to sign a bill specifically banning abortion pills. It’s to take effect July. Thirteen states already had blanket bans on all forms of abortion and 15 had limits on access, such as requiring that the pills be dispensed only and directly by doctors. The same day Gordon signed that, California Democrats introduced a measure intended to offer legal protection to doctors who mail abortion pills to patients in other states. A handful of other Democrat-controlled states have proposed or adopted similar laws already. WHAT NEW BANS ARE IN PLACE? Wyoming’s Gordon also allowed a separate ban on abortions at all stages of pregnancy to take effect Sunday without his signature. However, a judge on Wednesday halted enforcement, at least for now. Teton County District Court Judge Melissa Owens blocked an earlier ban last year hours before it was to take effect. Her order on the first ban remains in effect as courts decide whether it complies with the state’s constitution.
Analysis: In U.S. Abortion Pill Case, FDA Could Soften Blow of Court-Ordered Restrictions
Reuters, March 23, 2023
A conservative federal judge in Texas could soon order the U.S. Food and Drug Administration to reconsider its 22-year-old approval for a pill used in the most common form of abortion in the United States, or order the approval revoked outright. Of the various potential rulings possible in the case involving the abortion pill mifepristone, either of those outcomes would be unprecedented judicial intervention in the agency’s regulatory process. The FDA declined to comment on the litigation or its next steps. But interviews with nine U.S. food and drug law scholars and attorneys, including six who signed onto a brief filed in the Texas case, revealed the agency has the power to delay or soften the blow of a court-ordered ban on the drug or reconsideration of its approval. Any ruling in the case is expected to be appealed. Even if higher courts upheld a decision against the FDA, the agency could help prevent mifepristone from being immediately withdrawn from the market, these experts said. Some of the FDA’s options could be politically and legally risky both for the agency and mifepristone suppliers, they said. Mifepristone is part of a two-drug regimen with misoprostol that accounts for more than half of U.S. abortions. The agency’s role in determining mifepristone’s future has gotten little notice in a court battle that has drawn widespread attention as the most consequential abortion case since the U.S. Supreme Court last year overturned the 1973 Roe v. Wade ruling that established federal abortion rights. At a hearing last week in Amarillo, Texas, anti-abortion groups asked U.S. District Judge Matthew Kacsmaryk to halt sales of mifepristone nationwide – even in states where abortion is legal – while their lawsuit against the FDA proceeds. The groups contend the agency used an improper process when it approved mifepristone in 2000 and did not adequately consider the drug’s safety when used by girls under age 18. The FDA said the pill was deemed safe after extensive studies and use, and that the challenge comes much too late. What happens next will depend on whether Kacsmaryk finds he has the authority to overrule the FDA’s decision.
The Next Battleground for Abortion Rights
POLITICO, March 20, 2023
Ohio is shaping up to be the next big battleground in the state-by-state fight over abortion rights. Last week, the Ohio Ballot Board certified the petition language submitted by Ohioans for Reproductive Freedom and Ohio Physicians for Reproductive Rights, which proposes enshrining abortion rights in the state’s constitution. That step allows organizers to start collecting signatures for their effort to get on the ballot this November. More than 400,000 signatures have to be submitted by July, but organizers are aiming to gather more than 700,000. They plan to host a statewide kickoff next week. There are lessons to be learned from other states that underwent similar efforts last year. That includes Kansas and Kentucky, in which voters turned down proposed amendments that would have explicitly stated there are no protections for abortion rights in the states’ constitutions. Ohio’s effort is most similar to Michigan, which passed a ballot initiative in November to proactively codify abortion rights in the constitution there. Lauren Beene, the executive director of Ohio Physicians for Reproductive Rights, said her organization has already been communicating with activists in states that had ballot initiatives in 2022. She added that she hoped Ohio could be a stepping stone for similar measures next year. “We know that a number of states are likely going to do this in 2024, so we’re hoping that we can just continue to build this experience that other people can then take to the 2024 ballot,” she told Score. Organizers for the proposed constitutional amendment say they are optimistic, even though there will not be a top-of-ballot contest to boost turnout, should it qualify for November. They point to Kansas, where the abortion measure was on the August primary ballot. That had high turnout despite there being no competitive top-of-the-ticket statewide primaries in the state. “A lot of our organizations really buy into relational organizing, so we have relationships with our member base, whether it’s an off-year or not,” said Jordyn Close of Ohioans for Reproductive Freedom, where she serves as co-chair of the organizing committee.
Wyoming Judge Temporarily Blocks the State’s New Abortion Ban
The New York Times, March 20, 2023
Abortion will remain legal in Wyoming — at least temporarily — after a judge on Wednesday ordered that a newly enacted ban be blocked until further court proceedings in a lawsuit challenging it. After a three-hour hearing, Judge Melissa Owens of Teton County District Court granted a temporary restraining order, pausing a law that took effect Sunday. The law would make providing almost all abortions a felony punishable by up to five years in prison. The lawsuit — filed by six plaintiffs, including four health care providers — also challenges another law, scheduled to take effect on July 1, that would make Wyoming the first state to explicitly ban the use of pills for abortion. Now, the medication abortion ban and the overall ban will be considered at a hearing where the plaintiffs will seek an injunction to suspend both laws until the full lawsuit can be heard. A central issue is whether Wyoming’s Constitution allows the legislature to ban nearly all abortions, when the Constitution includes an amendment that guarantees adults the right to make their own health care decisions. An overwhelming majority of Wyoming citizens voted for the amendment in 2012. Similar battles over the constitutionality of state abortion plans have been playing out in other conservative states. In South Carolina and North Dakota, courts have ruled that abortion bans violate those states’ constitutions. In Idaho, courts have upheld the state’s abortion ban. Last year, Judge Owens blocked a previously enacted abortion ban, and a hearing on that is scheduled for December. The new ban, enacted earlier this month, was the legislature’s attempt to circumvent the constitutional guarantee of freedom in health care choices by declaring in the law that abortion is not health care. On Wednesday, Judge Owens questioned that assertion. “I’m just still hung up on abortion not being health care,” she said to the lawyer defending the laws for the state, Jay Jerde, a special assistant attorney general for Wyoming. “An abortion can only be performed by a licensed medical professional, so what authority does the legislature have to declare that abortion is not health care when our laws only allow a licensed medical professional to administer one?” she asked.
Jackson Pens Solo Dissent as Supreme Court Vacates Abortion Ruling
The Hill, March 20, 2023
The Supreme Court on Monday struck down a federal court ruling upholding the right for a minor to go to court to get permission to undergo an abortion, with Justice Ketanji Brown Jackson penning a solo dissent in the case. The ruling from the court on Monday vacated a lower court ruling that a state court clerk could be sued for telling a pregnant teenager that the court must notify her parents of her attempt to get a court order to allow her to obtain an abortion without the consent of her parents. Jackson’s dissent focused on the use of Munsingwear vacatur, in which a case is vacated because it has become moot while pending review by a higher court — unless the party adversely impacted by the initial decision is not to blame for the “mootness.” “I am concerned that contemporary practice related to so called ‘Munsingwear vacaturs’ has drifted away from the doctrine’s foundational moorings,” Jackson wrote in her dissent. The case stems from a lawsuit in Missouri that court clerk Michelle Chapman violated a 17-year-old pregnant teenager’s rights. A minor is required under state law in Missouri to obtain parental permission to receive an abortion, but it also allows a minor to seek a court order bypassing that requirement. When the teenager went to the courthouse in 2018 to secure such a bypass, Chapman said she would have to let the teenager’s parents know about the hearing. The teenager eventually went to Illinois and received such a judicial bypass and obtained an abortion. Two federal courts rejected Chapman’s claim that she was immune from the lawsuit. But the Supreme Court on Monday rejected the lower court ruling that Chapman was not immune from the suit, sending it back to an appeals court to dismiss the lawsuit as moot, accepting the clerk’s argument that the mootness was due to the Supreme Court decision striking down Roe v. Wade. But Jackson argued in her brief dissent that the case became moot because Chapman and the teenager agreed to have the original case in a district court in Missouri dismissed, arguing that meant it was not unfair for Chapman to lose her right to appeal. Jackson also noted the Munsingwear vacatur was previously reserved for “extraordinary” or “exceptional” cases, and said Chapman’s case was “far-from-exceptional.”
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