Federal and state activity in the initial weeks after the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization decision largely focused on litigation and executive and state legislative action designed to protect abortion access. While that activity continues, we are also now seeing the first serious legislative activity aimed at restricting abortion access in light of Dobbs. This Insight provides updates in these areas as of July 27, 2022.
A panel of the US Court of Appeals for the Eleventh Circuit vacated an injunction against enforcement of Georgia’s 2019 “fetal heartbeat” law on July 20, 2022, allowing the law to take immediate effect. The ruling also upheld the law’s definition of a “natural person” as “any human being including an unborn child . . . at any stage of development who is carried in the womb.” Plaintiffs had argued that the definition was unconstitutionally vague in its application to other state laws, like the criminal prohibition on homicide. The panel disagreed, stating that the definition was not vague on its face, even if “there might be vague applications of that definition in other provisions of the Georgia Code.” This is the first “personhood” law to be upheld post-Dobbs and may encourage other state legislatures to enact similar laws.
Litigation over the enforcement of state abortion laws also continues in state courts. A state judge in Louisiana extended a temporary injunction on Louisiana’s trigger law until the conclusion of litigation. Similar injunctions remain in place against abortion laws in Idaho, Kentucky, Michigan, Utah, and West Virginia. In addition, the Texas Supreme Court has issued a partial injunction barring enforcement of individual criminal penalties in Texas’s pre-Roe criminal statute.
Kansas
Voters in Kansas will consider an amendment to their state constitution on August 2, 2022. The amendment states that the Kansas Constitution does not create a right to abortion and gives the state legislature the authority to regulate abortion services. The amendment is designed to overturn a 2019 decision of the Kansas Supreme Court holding that abortion is protected by the state constitution.
This is the first abortion access measure to be considered by voters since the decision in Dobbs and could provide important insights into public opinion on the issue. Media reports suggest that Kansas voters are closely divided.
Indiana
The Indiana General Assembly convened for a special session to consider abortion legislation on July 25, 2022.
Indiana Senate Republicans have proposed a bill that would ban abortion in all instances except when necessary to prevent a substantial permanent impairment to the life of a pregnant person or in cases where the pregnancy is the result of rape or incest. The bill’s prohibitions would apply to “any person” who knowingly or intentionally terminates a human pregnancy except as permitted by Indiana law. The bill does not explicitly apply to employer insurance or benefit plans or seek to bar extraterritorial conduct.
Republicans in the Indiana House of Representatives have not yet introduced a companion measure. The Indiana General Assembly has until August 14, 2022, to approve a measure. The Indiana Senate intends to approve its measure by July 29, at which point the Indiana House will take it up for review.
West Virginia
West Virginia was scheduled to hold a special session on state income taxes starting July 25, 2022. Shortly before the session was set to begin, the governor of West Virginia amended the special session proclamation to include abortion. This followed a state court ruling last week that invalidated West Virginia’s pre-Roe criminal ban on vagueness grounds.
Republicans in the House of Delegates have introduced a bill, HB 302, which states that an abortion may not be performed or induced or be attempted to be performed or induced unless in the reasonable medical judgment of a West Virginia licensed medical professional there exists a nonmedically viable fetus, an ectopic pregnancy, or a medical emergency that creates a serious risk of substantial and irreversible physical impairment of the pregnant person. The bill excludes miscarriage, stillbirth, in vitro fertilization (IVF), and human fetal tissue research from the definition of abortion. Any person who administers any drug or other thing or uses any means with intent to terminate a pregnancy in a pregnant person, except as permitted by West Virginia law, will be guilty of a felony and subject to imprisonment for between 3 and 10 years. The bill exempts from criminal penalty the pregnant person seeking or receiving an abortion.
The West Virginia House Judiciary Committee is scheduled to hold a public hearing on HB 302 on July 27, 2022, and the House will likely vote on it the same day.
South Carolina
The South Carolina General Assembly is not formally in session, but its members have continued to work on legislation in this space.
The state House of Representatives convened a special “ad hoc” committee to recommend new legislation after Dobbs. The committee approved a working draft on July 19, 2022, which prohibits any person from knowingly administering, prescribing, or paying for any drug or substance with the specific intent of causing or abetting abortion on a pregnant person or knowingly using or employing any instrument, device, means, or procedure upon a pregnant person with the specific intent of causing or abetting an abortion.
The bill provides exceptions to protect the life of the pregnant person and permits abortion in cases of ectopic pregnancies or to remove a miscarried embryo or fetus. The bill does not seek to bar extraterritorial conduct except for a prohibition against physicians not licensed in South Carolina prescribing abortion medication to persons within the borders of South Carolina. It is not clear when the working draft will be considered by the South Carolina House Judiciary Committee or the South Carolina House of Representatives.
In the South Carolina Senate, three members introduced a bill, S. 1373, on June 28, 2022, that mirrors model legislation put forward by the National Right to Life Committee. The legislation is expansive and would prohibit all abortion except when necessary to prevent the death of the pregnant person. The bill further makes it unlawful to knowingly or intentionally aid, abet, or conspire with another person to perform an abortion—including by providing information or hosting or maintaining a website that provides information on obtaining an abortion—and prohibits persons from engaging in a “pattern of prohibited abortion activity” such as investing in, being employed by, or generally assisting an entity that conducts abortions or aids and abets abortions. The level of support for this legislation is not clear.
The US House of Representatives passed HR 8373, the Right to Contraception Act, on July 21, 2022. The legislation affirms that persons have a statutory right to obtain contraceptives and says that such rights shall not be limited or infringed by requirements that impede access to contraceptives or contraceptive-related information. The future of the legislation in the US Senate is uncertain.
If you have any questions or would like more information on the issues discussed in this Insight, please contact any of the following Morgan Lewis lawyers:
Sharon Perley Masling
Saghi (Sage) Fattahian
Jonathan Zimmerman