As the nation prepares for the upcoming 2024 elections, the consequences of the U.S. Supreme Court’s ruling in Dobbs v. Jackson continues to be a significant topic of discussion in numerous states. Since that decision and our first and second posts in this series, a number of noteworthy developments* have occurred at both the federal and state levels, including some states passing laws that prohibit or restrict the availability of abortions. Some of the most recent legal developments are summarized below.
- Federal:
- The U.S. Food and Drug Administration issued a new rule allowing mifepristone, a drug that ends intrauterine pregnancy through ten weeks’ gestation, to be more widely accessible in pharmacies in-person and online. The new rule eliminates the requirement of an in-person doctor’s visit for a mifepristone prescription.On April 7, 2023, Texas District Court Judge Matthew Kacsmaryk granted the Alliance for Hippocratic Medicine’s request for a preliminary injunction to block the FDA’s approval of Mifepristone during litigation.[1]On April 21, 2023, the U.S. Supreme Court blocked Judge Kacsmaryk’s ruling to preserve nationwide access to the drug, as explained in further detail in our Mifepristone post.
- The Department of Justice issued an opinion to give the U.S. Postal Service permanent authorization to continue mailing abortion pills, including to states where abortion is severely restricted.
- Arizona:
- Governor Katie Hobbs issued an executive order on June 20, 2023 to protect reproductive rights in Arizona. In the executive order, Hobbs directed the Attorney General of Arizona to assume all duties over abortion related prosecutions in the state of Arizona and directed state agencies not to assist in any investigations relating to providing, assisting, seeking, or obtaining reproductive healthcare that would not be punishable under Arizona law.[2]
- California:
- The California Senate approved S.B. 345 on May 31, 2023, to bolster abortion rights. The bill includes protections for healthcare practitioners that provide abortion services to out-of-state patients; gives California courts the ability to hear lawsuits against anyone who interferes with patients’ or providers’ rights to pursue abortions; and prohibits bounty hunters and bail agents from apprehending people located in California who face prosecution or imprisonment by another state that criminalizes abortion.[3]
- Florida:
- In April 2023, Florida Governor Ron DeSantis signed H.B. 5 into law. The bill prohibits physicians from terminating a pregnancy if the physician determines the fetus’s gestational age is greater than 15 weeks.[4]
- The Florida Supreme Court will hear arguments in Planned Parenthood of Southwest & Central Florida, et al. v. State of Florida, et al. on September 8, 2023, regarding the constitutionality of H.B. 5.[5]
- Idaho:
- Idaho Governor Brad Little signed H.B. 242 into law, which criminalizes “abortion trafficking.” Abortion trafficking consists of an adult who seeks to conceal an abortion from the parents or guardians of a pregnant, unemancipated minor by recruiting, harboring, or transporting the pregnant minor to obtain an abortion.[6]
- Indiana:
- On June 30, 2023, the Indiana Supreme Court upheld S.B. 1, which bans abortions at all stages of pregnancy with exceptions in cases of rape, incest, and lethal fetal abnormalities, and to save a mother's life or prevent serious health risk.[8] The court in Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc. et al. found that the Indiana constitution does not include a broad right to abortion.[9]
- Iowa:
- The Iowa State Legislature passed House Study Bill 255 on July 11, 2023 to prohibit abortions after a “fetal heartbeat” is detected, defined to mean cardiac activity, which typically occurs around 6 weeks of pregnancy. [10] Governor Kim Reynolds signed the final version into law on July 14, 2023 to become effective that day.[11] There is an exception for rape, which must be reported within 45 days of the incident. There is also an exception for cases that involve “medical emergencies,” generally relating to the safety and life of the mother.[12]
- A suit, Planned Parenthood of the Heartland, Inc., Emma Goldman Clinic and Jill Meadows v. Reynards ex rel. State of Iowa and Iowa Board of Medicine, has already been filed in Iowa District Court for Polk County by Planned Parenthood of the Heartland, the American Civil Liberties Union of Iowa, and the Emma Goldman Clinic seeking a temporary injunction to block the new restrictions while the legal challenge ensues.[13]
- Kansas:
- H.B. 2264 took effect July 1, 2023. The bill amends the existing Women’s Right to Know Act with the expansion of the definition of abortion. The expanded definition of abortion is such that “the use or prescription of any instrument, medicine, drug, or any other means to terminate the pregnancy of a woman does not mean an ‘abortion’ when done with the intent to: preserve the life or health of the unborn child; increase the probability of a live birth; remove a dead unborn child who died as a result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or the unborn child; or remove an ectopic pregnancy.”[14]As of June 20, 2023, Kansas officials have agreed to not enforce HB 2264 for at least five weeks before the state court decides whether the newest restrictions should be blocked while a lawsuit filed by the Center for Reproductive Rights is pending.[15] District Court Judge K. Christopher Jayaram set a hearing date for August 8, 2023.
- Missouri:
- Montana:
- In April 2023, Montana passed multiple laws that restrict access to abortion, including H.B. 575, which prohibits abortions of unborn viable children.[18]In May 2023, Montana Governor Gianforte signed H.B. 721 into law, which prohibits the use of dilation and evacuation abortions.[19] However, on May 18, 2023, a Montana judge issued a temporary restraining order against a H.B. 721.
- North Carolina:
- Several provisions of S.B. 20, passed by the North Carolina legislature in May of this year, took effect on July 1, 2023. The now-active provisions include a prohibition on abortions after 12 weeks of pregnancy (with limited exceptions), 72-hour informed consent requirements, pre-abortion gestational age verification, and reporting requirements for abortions after 12 weeks.[21]Beginning on October 1, 2023, more provisions of S.B. 20 will take effect, including: requirements for all surgical abortions to take place in hospitals; licensing requirements for abortion clinics; expanded practice authority for certified nurse midwives; and new provisions for the “safe surrender” of an infant.[22]
- In Planned Parenthood South Atlantic v. Stein, the federal district court granted a temporary restraining order (TRO) on one provision of S.B. 20, which enjoins the state from enforcing the requirement that physicians must document the existence of an intrauterine pregnancy before proceeding with a medical abortion.[23] The TRO expired on July 14, 2023. The remainder of the bill, however, was allowed to proceed.
- Ohio:
- An amendment that would create a state constitutional right to an abortion in Ohio has received over 700,000 signatures. Abortion is currently legal in Ohio through 22 weeks of pregnancy. Ohio officials determined that enough signatures in support of the amendment were valid, which means the amendment will be put to a popular vote in November.[24]
- South Carolina:
- The Fetal Heartbeat and Protections from Abortion Act, S.474, was signed into law in May 2023. The bill prohibits abortion after a fetal heartbeat has been detected, which often occurs around 6 weeks into pregnancy.[25] There are limited exceptions in cases of medical emergencies, fatal fetal anomalies, and in cases of rape or incest.[26]
- The bill is currently on hold and awaiting review from the state supreme court, after Judge Clifton Newman’s ruling in Planned Parenthood South Atlantic, et al. v. State Of South Carolina, et al. upheld the state’s abortion prohibition at 20 weeks.[27] The Supreme Court heard arguments on June 27, 2023.
- Wyoming:
- Wyoming Governor Mark Gordon signed a bill, S.F. 0109, in March to prohibit chemical abortions beginning July 1, 2023. Specifically, the bill prohibits anyone from prescribing, dispensing, distributing, selling or using any drug for the purpose of procuring or performing an abortion on any person.”[28] However, on June 22, 2023, in Danielle Johnson. v. State of Wyoming, District Court Judge Melissa Owens for the Ninth District granted a temporary restraining order against the bill.[29]
- Judge Owens previously blocked Wyoming’s Life is a Human Right Act, which would have charged abortion providers with felonies that carry up to a five-year prison sentence and $20,000 fine.[30]
The Dobbs decision and the midterm elections have resulted in major changes to abortion-related laws and policies in the United States. As the legal landscape changes rapidly, we will continue to provide updates to keep you informed about new developments at the federal and state levels. If you have any questions about these laws or their impact on your company, please contact a member of the Sheppard Mullin Healthcare Team.
*The law, policy and regulatory climate surrounding the Dobbs decision is complex and quickly developing. The information included in this article is current as of August 1, 2023, but it does not address all potential legal issues or jurisdictional differences, and the information presented may no longer be current.
[1] All. for Hippocratic Med. v. United States FDA, 2023 U.S. Dist. LEXIS 61474, at *96 (N.D. Tex. Apr. 7, 2023).
[2] Exec. Order No. 2023-11, 2023 Ariz, Reg. 1.
[3] Cal. S.B. 345, 2023-2024 Reg. Sess. (Cal. 2023).
[4] Fla. H.B. 5, 2022 Leg., Reg. Sess. (Fla. 2022).
[5] Planned Parenthood of Sw. & Cent. Fla., et al. v. State of Fla., et al, SC22-1127 (Fla. June 1, 2023).
[6] Id. H.B. 242, 67th Leg., 1st Reg. Sess. (Idaho 2023).
[7] Matsumoto v. Labrador, No: 1:23-cv-00323 (D. Idaho July 11, 2023), Complaint.
[8] Ind. S.B. 1, 123rd Gen. Assemb., 1st Reg. Sess. (2022).
[9] Members of the Med. Licensing Bd. of Ind. v. Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky., Inc., No. 22S-PL-00338, (Ind. Jan. 19, 2023).
[10] Iowa H. Study Bill 255, 90th Gen. Assemb. (2023-2025).
[11] Iowa H. 732, 90th Gen. Assemb. (2023-2025).
[12] Id.
[13] Planned Parenthood of the Heartland, Inc. v. Reynolds, No. EQCE083074 (Iowa Dist. Ct. for Polk Cnty. June 16, 2023).
[14] Kan. H.B. 2264, 2023 Leg., Reg. Sess. (Kan. 2023).
[15] Hodes & Nauser, MDs, P.A. v. Kobach, No. 23CV03140 (Johnson Cty., Kan. Dist. Ct. July 7, 2023).
[16] Kan. H.B. 2313, 2023 Leg., Reg. Sess. (Kan. 2023).
[17] Rev. Traci Blackmon, et al. v. State of Mo., No. 2322-CC00120, (Mo. Cir. Ct. 2023).
[18] Mont. H.B. 575, 67th Leg., Reg. Sess. (2023).
[19] Mont. H.B. 721, 67th Leg., Reg. Sess. (2023).
[20] Helen Weems and Jane Doe v. State of Mont., No. DA 22-0207 (Mont. May 12, 2023).
[21] N.C. Sess. Laws 2023-5, S. 20 (2023).
[22] Id.
[23] Planned Parenthood S. Atl. v. Stein, No. 1:23-cv-00480 (M.D.N.C. June 16, 2023).
[24] Kate Zernike, Ohio Will Vote on Abortion Rights, N,Y. Times (July 25, 2023), https://www.nytimes.com/2023/07/25/us/ohio-abortion-rights-amendment.html.
[25] S.C. S. 474, 125th Sess. (2023).
[26] Id.
[27] Planned Parenthood S. Atl., et al. v. State of S.C., et al., No. 28127 (S.C. 2023).
[28] Prohibiting Chemical Abortions, S.F. 0109, 66th Leg., Gen. Sess. (Wyo. 2023).
[29] Johnson v. Wyo., No. 18853, (Wyo. Dist. Ct. March 21, 2023).
[30] Johnson v. Wyo., No. 18732, Order Granting Motion for Preliminary Injunction (Wyo. Dist. Ct. Aug. 10, 2022).