In the last two weeks, South Carolina’s Senate failed to pass a near-total ban on abortion, California’s legislature passed a law prohibiting California corporations from assisting with certain investigations related to the provision of abortion services, and Oklahoma’s attorney general released guidance on enforcement of the state’s criminal laws prohibiting abortion. In addition, the US Department of Veterans Affairs issued an interim final rule that would permit abortion counseling as part of its medical benefits packages.
South Carolina Fails to Pass Near-Total Ban on Abortion
The South Carolina Senate convened on September 6, 2022, to consider HR 5399, a bill passed by the South Carolina House of Representatives on August 31, 2022, that would prohibit nearly all forms of abortion. The measure ultimately failed due to the combined opposition of four Republican members and all Democratic members of the chamber. The Senate instead approved amendments to South Carolina’s existing fetal heartbeat law.
As passed by the House, HR 5399 stated that no person may knowingly use, employ, prescribe, sell, or procure any method or procedure upon or to a pregnant person with the specific intent of causing an abortion. The bill contained exemptions for abortions performed to save the life of the pregnant person or to avert a substantial risk of death or physical impairment to the pregnant person, and in cases of rape or incest in the first 12 weeks post-fertilization.
The House version was based on the recommendations of South Carolina’s Ad Hoc Committee on Dobbs v. Jackson Women’s Health, which held two public hearings in July before releasing a final report that was adopted by the House Judiciary Committee in August. The initial version of the bill considered by the House did not contain an exemption for rape or incest, but that was voted down and amended to include the 12-week exemption noted above.
A majority of the Senate supported the bill, but the members opposing it had sufficient numbers to block passage through a filibuster. Republican members opposed to the legislation were driven, in part, by the lack of a rape and incest exemption in the Senate proposal. The Senate Medical Affairs Committee had stripped that language from the House bill prior to sending it to the Senate floor. Several compromise amendments on the issue were introduced, but all failed to pass due to the resistance of abortion opponents.
In lieu of a total ban, the Senate passed amendments to South Carolina’s existing fetal heartbeat law. The amendments would narrow the window where abortion is permitted in cases of rape or incest from 20 weeks to 12 weeks and require that at least two physicians confirm the presence of a “fetal anomaly” (an irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth) before permitting an abortion in those cases. The fetal heartbeat law is currently prohibited from enforcement pending judicial review.
South Carolina is the third state to call a special session to consider legislation restricting abortion access after Dobbs. All three states witnessed unexpected divisions among abortion opponents and only one session—Indiana’s—resulted in the passage of a new law, though there is still the possibility that South Carolina or West Virginia could return and agree to new restrictions. The difficulties faced by these states could dissuade other legislatures from calling special sessions on the issue.
West Virginia May Return for Special Session Excluding Abortion
The West Virginia House and Senate remain divided on the scope of a rape and incest exemption in the proposed ban on abortion. West Virginia convened a special session to consider abortion legislation on July 25, 2022. Both the House and Senate approved near-total bans but could not agree on language for an exception in the case of rape or incest. Both chambers adjourned on July 29, 2022.
News reports indicate that negotiations continue between House and Senate leadership on the bill. The House speaker announced his intention to bring the House back on September 12, 2022. The Senate president said in response that no deal had been reached between the chambers on the abortion bill and that the Senate was not aware of the House’s plan to return.
The West Virginia governor subsequently issued a proclamation calling for a special session on September 12, 2022, but that proclamation only mentioned bills related to a business development program and supplemental appropriations. It did not reference abortion legislation.
California Enacts New Bills Expanding Abortion Access
The California State Assembly approved a slate of bills related to abortion access on September 1, 2022.
The most significant bill for employers appears to be AB 1242. If enacted, the bill would prohibit California corporations that provide electronic communication services, including corporations whose principal executive offices are located in California, from supplying records, information, facilities, or any other assistance in response to a warrant, court order (including a wiretap order, pen register order, or trace order), subpoena, or other legal process issued by another state that relates to an out-of-state investigation into the provision of abortion services that are legal in California.
The bill authorizes the California attorney general to file civil actions compelling compliance but does not make companies liable for noncompliance, unless the company knew or should have known that an order or legal process was tied to an out-of-state investigation into the provision of abortion services that are legal in California.
The bill further provides that California corporations that provide electronic communication or remote computer services may not comply with out-of-state warrants seeking records related to the identity of a user or the user’s communications or data, unless the warrant is accompanied by an affidavit saying it does not relate to the provision of abortion services that would be legal in California.
AB 1242 also bars state or local law enforcement agencies, judicial officers, court employees, and/or authorized attorneys from assisting with a proceeding in another state regarding an individual performing, supporting, or aiding the performance of an abortion in California.
The bill is currently being reviewed by the governor of California, who is expected to sign it.
Oklahoma AG Issues Guidance on Enforcement of Abortion Ban
The Oklahoma attorney general issued a memorandum to law enforcement on August 31, 2022, on the enforcement of Oklahoma’s criminal laws prohibiting abortion. The memo advises that district attorneys and law enforcement agencies should not initiate prosecutions against a pregnant person for seeking or obtaining an abortion or prosecute abortions related to unintentional miscarriages, miscarriage management, or ectopic pregnancy. The memo also notes that in vitro fertilization treatments and the use or prescription of contraception, including Plan B, are not prohibited by Oklahoma law.
The memo further states that Oklahoma laws that bar aiding and abetting a crime may make it unlawful to advise a pregnant person to obtain an abortion, but such cases should only be brought where a person has advised or encouraged a person to obtain an unlawful abortion “in some imminent way.” The memo cautions that law enforcement should take great care to avoid infringing on constitutional speech rights when bringing such claims, and should never pursue investigations or prosecutions of persons engaged in general advocacy in favor of abortion.
New Mexico Governor Expands and Protects Abortion Access
The New Mexico governor issued a second executive order related to abortion access on August 31, 2022. The order designates $10 million for the purpose of developing a new clinic offering reproductive healthcare, including abortion, in New Mexico; directs the Department of Health to leverage state resources to expand access to abortion services, including by considering issuing abortion medication through public health clinics; and instructs the Human Services Department to develop policies to improve the efficiency and sustainability of access to reproductive health services.
The order builds on the June 27, 2022, executive order, which protected persons charged under state anti-abortion laws from extradition, barred New Mexico state agencies from cooperating with out-of-state investigations into abortion law violations, and directed state licensing boards to develop rules protecting abortion providers in New Mexico from sanctions due to out-of-state investigations or charges.
A Michigan Court of Claims judge ruled on September 6, 2022, that Michigan’s pre-Roe criminal ban on abortion violated the due process and equal protection clauses of the Michigan Constitution. The judge permanently banned enforcement of the law by state and county prosecutors.
The ruling stems from a lawsuit filed by Planned Parenthood of Michigan in April. The suit was supported by the current governor and attorney general of Michigan, both of whom have pledged to protect abortion access in Michigan. While the state will not appeal the decision, Republican members of the Michigan legislature intervened as defendants in the lawsuit and are expected to file an appeal with the Michigan Supreme Court.
The US Department of Veterans Affairs released an interim final rule on September 2, 2022, that removes a previous exclusion on abortion counseling in Veterans Affairs medical services. The rule will take effect immediately upon publication in the Federal Register. This announcement is part of the Biden-Harris administration’s broader push to expand access to abortion services where possible through federal action.
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