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The Most Common Abortion Method Is in Danger in Every State

TIME, February 15, 2023

The future of medication abortions across the U.S.—even in states with few abortion restrictions—is on the line. Experts call a recent, soon-to-be-decided lawsuit the most consequential court case for nationwide abortion access since the overturning of Roe v. Wade. A ruling is expected as soon as Feb. 24. Here’s what to know about the case. What the lawsuit says: The suit, filed Nov. 18, 2022 on behalf of the anti-abortion physician’s group Alliance for Hippocratic Medicine (AHM), seeks to overturn the U.S. Food and Drug Administration (FDA)’s approval of mifepristone: one of the two prescription pills that are typically used in combination to terminate pregnancies, and which account for more than half of all U.S. abortions. AHM holds that the FDA “failed America’s women and girls” because the regulator approved mifepristone via an “accelerated” process more than two decades ago. The FDA has stated that mifepristone was approved within the guidelines at the time and has continued to be evaluated and regulated appropriately. The lawsuit is being tried during a confusing time for medication abortion access. Recently, the Biden Administration made moves to expand legal access to the pills; in early January, the FDA released new rules allowing all pharmacies to offer mifepristone, and in 2021, the agency abolished an in-person appointment requirement, which allowed doctors to prescribe the medication remotely and for patients to receive it via mail. Abortion-rights advocates are particularly concerned about the AHM’s decision to file the suit in Amarillo, Texas, where Judge Matthew Kacsmaryk was confirmed to a lifetime federal appointment in 2019. Of all federal judges appointed by former President Donald Trump, Kacsmaryk’s views are believed to be among the more openly conservative and driven by Christian dogma. The practice of judge shopping, where political and religious organizations like the AHM specifically seek out jurisdictions with judges that they believe are likely to hand out the results they want, has kept Kacsmaryk particularly busy in Amarillo, Vox reports. During his tenure, Kacsmaryk has worked to thwart the Biden Administration’s attempts at loosening immigration restrictions, to prevent the adoption of guidelines that would protect transgender people in the workplace, and to require parental approval for minors in Texas to obtain federally funded birth control, among other conservative goals.

Abortion Bans Spur Biden Push to Bolster Patient Privacy Rights

Bloomberg Law, February 15, 2023

The Biden administration is working on a proposal to better protect the privacy of patients seeking reproductive health care, a move that follows concerns from providers struggling to offer services amid state abortion restrictions. The Proposed Modifications to the HIPAA Privacy Rule to Support Reproductive Health Care Privacy (RIN 0945-AA20) by the Department of Health and Human Services Office for Civil Rights comes amid abortion bans in at least 24 states, and follows 2022 agency guidance for health providers to protect patient records when law enforcement requests them. After the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision cut down federal abortion rights, “in some states with bans on abortion, there was concern over what actions law enforcement may take when investigating those laws and initiating prosecution,” said Leon Rodriguez, who led the HHS civil rights office under President Barack Obama. Currently listed as under White House review—a step before public release—the proposed rule is one of a handful of recent actions the Biden administration may take on reproductive services. The Food and Drug Administration announced in January that pharmacies can get certified to dispense the abortion drug mifepristone. Meanwhile, the HHS is also proposing changes to a Trump-era rule that observers say would make it more difficult for providers to decline offering abortions due to religious objections. “I would imagine that this administration is intent on protecting access to reproductive health care to the full extent that the law allows,” said Rodriguez, now a partner at Seyfarth Shaw. ‘Nondiscriminatory Access’: Current OCR Director Melanie Fontes Rainer declined to share the content of the proposed rule with Bloomberg Law. She did, however, note that “the Office for Civil Rights has a statutory mandate to ensure nondiscriminatory access to health care.” “Part of that mission is to promote privacy and protect health information,” she said. She added that the HHS conducted roundtables and listening sessions across the country with patients, providers, advocates, state health officials, and others. But Roger Severino, who led the HHS civil rights office under President Donald Trump, said the proposal appears to be an attempt “to twist HIPAA to use it as a bludgeon against the Dobbs decision and interfere with cooperation with law enforcement.”

A New Goal for Abortion Bans: Punish or Protect Doctors

The New York Times, February 16, 2023

For the first time since the fight over abortion access was kicked to the states after the Supreme Court overturned Roe v. Wade, newly elected legislatures around the country are coming into session and are putting the polarizing issue at the top of their agendas. Around 300 bills in 40 states have been proposed so far — with a majority seeking to restrict access to abortion, and others trying to strengthen it. Most of the bills are in the early stages, and many are not likely to survive politically divided state governments to make it into law. But if there is one thing that is evident, the legislative flurry shows that both sides of the debate agree on at least one point: Doctors are the critical link — and that has made them the most vulnerable to punishment. At least three dozen bills are aimed at doctors and other medical personnel as a way to regulate abortion. In a bill in Wyoming, doctors and nurses who perform abortions or prescribe medication for abortions could face five years in prison. In Nebraska, where abortion is currently legal until 22 weeks after a woman’s last menstrual period, a bill to make it illegal after around six weeks would strip doctors who perform abortions of their medical licenses if they perform one after detecting cardiac activity on an ultrasound, or even if they fail to provide an ultrasound before an abortion. “Our goal isn’t to throw a lot of doctors in jail; our goal is accountability,” said Sue Liebel, the director of state affairs for Susan B. Anthony Pro-Life America, an anti-abortion group that lobbies for restrictions and bans. More than a dozen states already ban most abortions, and those laws punish doctors with prison and steep fines. That tactic has largely worked: Abortion providers have shut down in states with bans, and doctors and hospitals are reluctant to provide abortions until women are sick enough to qualify for exceptions that say the procedure is legal when a woman’s life is in danger. In states with bans, abortion pills have become a crucial workaround. Although bans prohibit abortion by any method, including medication, pills are tougher to regulate.

Doctors and Nurses Shouldn’t Be Able to Report Your Pregnancy Loss to the Police

Jezebel, February 13, 2023

If a pregnant woman shows up to an emergency room bleeding heavily, a healthcare provider or social worker might report her to the cops if they suspect she self-managed her abortion. This is legal, though a growing group of advocates stress it’s unethical. After the Supreme Court overturned Roe v. Wade, the risk of pregnancy criminalization has spiked. People may think the Health Insurance Portability and Accountability Act (HIPAA) would protect their private medical information, but the law’s privacy rule has a loophole that allows healthcare workers to share information with law enforcement when they believe a crime has been committed, or when they receive a warrant or subpoena. (Caitlin Bernard, the Indiana OB/GYN who cared for a 10-year-old rape survivor, is suing to stop the state Attorney General’s subpoena seeking the girl’s medical records.) Now, advocates and lawmakers are calling for the Biden administration to fix HIPAA’s privacy loophole. Sens. Mazie Hirono (D-HI) and Michael Bennet (D-Colo.) introduced a bill Thursday that would strengthen HIPAA to ban medical providers from disclosing information on abortion or pregnancy loss without patients’ consent in a court proceeding. It’s called the Secure Access for Essential Reproductive (SAFER) Health Act, and it would also require the Department of Health and Human Services to conduct a national education campaign for healthcare workers. The bill stops short of banning providers from sharing this information with law enforcement and instead focuses on hampering prosecutions. The loophole is not a hypothetical risk, as healthcare workers already reported their patients to law enforcement while Roe was still on the books. The non-profit Pregnancy Justice notes that there were more than 1,300 arrests for suspicion of drug use or self-managed abortion or pregnancy loss between 2006 to 2020 alone. An August 2022 report from If/When/How found that, in 61 cases where adults were investigated for pregnancy outcomes, 45 percent were reported to law enforcement by care professionals, including doctors, nurses, and social workers. When patients don’t trust their providers, there’s a chilling effect on reproductive care, said Jamila Perritt, president and CEO of Physicians for Reproductive Health, one of several reproductive rights groups to endorse the SAFER Health Act.

Republicans Clash with Prosecutors Over Enforcement of Abortion Bans

POLITICO, February 12, 2023

GOP lawmakers see a major flaw in their states’ near-total abortion bans: Some local prosecutors won’t enforce them. Republicans in Georgia, Indiana, South Carolina and Texas — frustrated by progressive district attorneys who have publicly pledged not to bring charges under their state’s abortion laws — have introduced bills that would allow state officials to either bypass the local prosecutors or kick them out of office if their abortion-related enforcement is deemed too lenient. In Texas, one of several bills lawmakers are pushing would allow the state attorney general or a private individual to ask a court to remove a district attorney who fails to prosecute abortion-related offenses and other “crimes of violence.” They also plan to introduce a bill to allow any resident to bring civil claims against anyone suspected of “aiding and abetting” an abortion. In Georgia, legislators want to create a prosecutorial oversight commission that could discipline or remove local prosecutors who demonstrate a “willful and persistent failure to perform his or her duties.” A bill introduced in the South Carolina House would give the state attorney general the power to prosecute abortion cases — something currently under the purview of local district attorneys. And in Indiana, proposed legislation would allow a legislatively appointed special prosecutor to enforce laws when a local prosecutor declines to do so. The mounting tension between Republican lawmakers and local prosecutors over abortion is one part of a broader fight over diverging approaches to criminal justice — seen in recent battles over drug laws, property crimes and other offenses. As more prosecutors, particularly in progressive metropolises in red states, win elections by breaking with the decadeslong tough-on-crime mindset and running as a check on GOP lawmakers, conservative state officials say they now need to rein in their excesses. “Whatever issue we’re talking about — whether it’s marijuana, abortion, enforcing homicide statutes, enforcing whatever the law is — the law is on the books, and the law is supposed to be applied equally across the board among our citizens,” said Republican Indiana Sen. Aaron Freeman, who is sponsoring the special prosecutor bill. “If we’re just going to basically ignore the Constitution and our republic and just do whatever the hell we want, well, that’s a society that scares the hell out of me.”

ICYMI: In Case You Missed It

New from @josialiana, NP's Reproductive Health Equity Legal Fellow: The War on Reproductive Rights Continues as Lawsuit Seeks to Ban Mifepristone. https://t.co/s58gATofPU

— National Partnership (@NPWF) February 16, 2023

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Note: The information contained in this publication reflects media coverage of women’s health issues and does not necessarily reflect the views of the National Partnership for Women & Families.