This past week witnessed the first referendum on abortion rights since the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health, along with legislative developments in several states concerning access to abortion. Litigation over the enforcement and validity of state laws barring abortions also continues, highlighted by the federal government’s challenge to Idaho’s pending abortion law. This Insight provides updates in these areas as of August 3, 2022.
Kansas
Voters in Kansas overwhelmingly disapproved a proposal to remove the right to abortion from the Kansas State Constitution in a referendum held on August 2, 2022. The proposed amendment sought to overturn a 2019 ruling by the Kansas Supreme Court and would have permitted the state legislature to fully regulate access to abortion services.
High turnout among pro-choice voters was reportedly one cause of the result, but media reports also credit the victory to a surprisingly strong “no” vote in areas of the state that traditionally produce large majorities for conservative candidates. It is too soon to tell if this result will affect activities in other states concerning abortion access.
Indiana
After a week of contentious hearings and floor debate, the Indiana State Senate narrowly passed a bill restricting abortion access on July 30, 2022. The bill now heads to the Indiana House of Representatives where it faces an uncertain fate.
The Indiana State Senate bill would make all abortion unlawful except when performed to remove a dead or nonviable fetus or when necessary to prevent a substantial permanent impairment of the life of the pregnant person. It also permits abortion if the pregnancy is the result of rape or incest under certain circumstances. Persons who knowingly or intentionally perform abortions in violation of the law are guilty of a Level 5 felony. The law does not impose criminal liability on individuals who terminate or attempt to terminate their own pregnancies.
Indiana Republicans are divided over the bill, with some claiming it fails to go far enough in terms of the limitations and penalties it imposes.
West Virginia
The fate of new abortion legislation in West Virginia is similarly in question following a last-minute disagreement between the West Virginia Senate and House of Delegates related to the rape or incest exemptions in the proposed law.
The governor of West Virginia convened the legislature for a one-week special session on both state income taxes and abortion on July 25, 2022. The West Virginia House of Delegates quickly approved a bill prohibiting all abortion except when necessary to remove a nonviable fetus, terminate an ectopic pregnancy, or prevent a serious risk of substantial and irreversible physical impairment to the pregnant person. The bill also permits abortion when pregnancies are the result of sexual assault or incest until 14 weeks post-fertilization.
The West Virginia Senate largely accepted the House bill but passed an amendment reducing the time period for abortions in cases of sexual assault and incest to eight weeks post-fertilization. The House refused to agree to that amendment and sent the bill back to the Senate on July 29, 2022. The Senate quickly passed a resolution insisting on its version and abruptly adjourned without stating a time to reconvene.
Given the general agreement on the provisions of the bill, it seems likely that West Virginia’s legislature will reconvene to enact new legislation, but it is not clear when that might occur.
Massachusetts
On July 29, 2022, Massachusetts became the sixth state to pass legislation shielding in-state providers and persons who travel to their state from liability under the anti-abortion laws of other states, joining California, Connecticut, Delaware, New Jersey, and New York. The Massachusetts law builds on an executive order previously issued by the governor of Massachusetts on June 24, 2022.
The legislation prohibits state law enforcement agencies from cooperating with out-of-state investigations relating to abortion services and bars state courts from enforcing summons, warrants, or judgments stemming from civil or criminal litigation related to abortion services that are lawful in Massachusetts. The law also provides protections for abortion providers against discipline by state licensing boards related to violations of out-of-state abortion laws and increases in medical malpractice insurance. Further, the law authorizes persons in Massachusetts to bring civil actions countering any civil litigation or judgments filed against them under the laws of other states related to abortion services.
State courts in North Dakota and Wyoming temporarily enjoined laws barring abortions which were scheduled to go into effect on July 27 and 28, 2022, respectively. The plaintiffs in both cases assert that the laws infringe on rights protected by the state constitutions. Similar injunctions against abortion laws remain in place in Idaho, Kentucky, 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.
A Michigan state court of appeals ruled on August 1, 2022, that the existing injunction on Michigan’s pre-Roe statute criminalizing abortion does not prevent county prosecutors from bringing charges under the law. The state and Michigan-based abortion providers are expected to appeal the decision. In addition, a state judge in Louisiana lifted the temporary ban on enforcement of Louisiana’s abortion ban on August 1, 2022.
The temporary injunctions noted above do not necessarily indicate whether the courts will overturn or limit the laws in these states. In most cases, the key factor cited in the decision to apply an injunction was the irreparable harm that would occur to the plaintiffs (e.g., immediate closure of a clinic) if enforcement were not paused during litigation.
Supreme Court Issues Final Judgment in Dobbs
The US Supreme Court issued its final judgment in Dobbs v. Jackson Women’s Health on July 25, 2022. The issuance of the Court’s final judgment started the process for the Idaho, Tennessee, and Texas trigger laws to go into effect. The attorneys general of those states have announced the laws will take effect on August 25, 2022. Litigation over the Idaho and Texas bans is ongoing.
EMTALA Lawsuits
The US Department of Justice (DOJ) filed a lawsuit on August 2, 2022, in the US District Court for the District of Idaho arguing that Idaho’s ban on abortion conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). The complaint requests a declaratory judgment affirming that Idaho’s ban on abortion is preempted to the extent it conflicts with EMTALA.
In a July 11, 2022, letter to healthcare providers, Secretary of Health and Human Services Xavier Becerra stated that EMTALA—a law enacted in 1986 to prohibit hospitals from refusing to treat certain patients—requires physicians in hospital emergency departments, including certain labor and delivery departments, to provide abortion services if those services qualify as necessary stabilizing treatment to address an emergency medical condition. Secretary Becerra’s letter noted that this obligation continues to apply even in states that prohibit abortion services.
The DOJ lawsuit challenges the Idaho ban on abortions that is scheduled to take effect on August 25, 2022. The Idaho law makes it a felony to perform an abortion unless the provider can demonstrate that the abortion was necessary to prevent the death of the pregnant person or that the pregnant patient reported an act of rape or incest to a law enforcement agency and provided the physician with a copy of that report. According to the DOJ, these restrictions prevent Idaho doctors from performing the medically necessary treatment required by EMTALA and therefore are preempted by the federal law.
The EMTALA guidance is the subject of a pending lawsuit filed by the Texas attorney on July 14, 2022.
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