U.S. Repro Watch, November 1

Abortion on the Ballot 2024

Since the U.S. Supreme Court eliminated the federal constitutional right to abortion in 2022, more than a dozen U.S. states have banned abortion entirely, leaving millions without access to care. While anti-abortion state lawmakers continue to seek ways to ban and restrict abortion and other reproductive care, on November 5, millions of voters will consider adding abortion protections into their state constitutions. Since 2022, voters have sided in favor of abortion rights each time an abortion-related measure was on the ballot.

Voters in 10 states are set to weigh in on ballot measures to enshrine abortion rights into their state constitutions.

• As the harm of state abortion bans becomes ever more clear, state constitutional amendments to protect the right to abortion will appear on ballots in 10 states.
• In some of those states, abortion is now banned or highly restricted and amendments could be a basis for challenging those limitations. In other states where abortion is still legal, amendments will prevent the threat of future interference by state or local governments.   
• Check the Center’s “Abortion on the Ballot” page for more details on the 10 proposed state constitutional amendments.

Recent court rulings have shown that state constitutions can help protect abortion rights.

Every state in the nation has a unique constitution, providing opportunities to recognize protections for rights, including abortion, under frameworks including personal autonomy, privacy, and equality.  

Here are recent court rulings in which state constitutions played a role:

An Ohio court struck down the state’s six-week abortion ban for good, citing the state’s 2023 constitutional amendment protecting abortion rights.

• Judge Christian Jenkins permanently blocked the ban on October 24, ruling that the law clearly violates Ohioans’ constitutional right to abortion, which voters enshrined into the state constitution in 2023. 
• “Ohio voters have spoken. The Ohio constitution now unequivocally protects the right to abortion,” wrote Judge Jenkins. “Unlike the Ohio Attorney General, this court will uphold the Ohio Constitution’s protection of abortion rights.”

In Tennessee, doctors won’t be punished for providing abortion care for specific pregnancy complications.

• A Tennessee court ruled on October 17 to temporarily block the state’s abortion ban for dangerous pregnancy complications and fatal fetal diagnoses, allowing doctors to provide abortion care to their patients facing those conditions without fear of disciplinary action while the case proceeds.
• The Court held that the Center would likely succeed on its constitutional claims, which include that the ban violates pregnant patients’ right to life and equal protection under the law and is unconstitutionally vague. 
• The ruling was issued in Blackmon v. State of Tennessee, a case brought by the Center for Reproductive Rights on behalf of seven Tennessee women denied abortion care and two physicians. 

The Montana Supreme Court upheld a ruling blocking abortion restrictions for Medicaid recipients. 

• The Court on October 9 upheld a district court’s ruling temporarily blocking a number of abortion restrictions, including severe restrictions on Medicaid recipients’ access to abortion care. 

• The lawsuit, brought by the Center and its partners on behalf of Montana abortion clinics, argues that the Medicaid restrictions violate the Montana constitution’s explicit right to privacy. The restrictions will remain blocked until the district court issues its final decision.

State constitutions have also been the basis of arguments in other cases challenging abortion bans, including in Center cases in North Dakota, Georgia, Oklahoma and Michigan.

Extremists’ attempts to restrict abortion rights continued.

Anti-abortion officials asked a court to roll back access to abortion medication nationwide. 

• Attorneys general in Kansas, Idaho, and Missouri on October 11 asked a federal court to reinstate medically unnecessary restrictions on the abortion drug mifepristone, including eliminating access through telemedicine.   
• The request is part of an attempt to revive a lawsuit threatening access to medication abortion in every state. While that case was dismissed by the U.S. Supreme Court on standing grounds, the three states intervened and are continuing the case to limit access to the drug.  
• The request was filed at a federal court in Texas in front of anti-abortion Judge Matthew Kacsmaryk, who last year ruled to pull the drug off the market nationwide.

An anti-abortion doctor in Texas challenged a federal rule designed to protect patient records from law enforcement. 

• The rule, finalized earlier this year, updates the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and prohibits healthcare providers and insurers from giving law enforcement private patient records containing information on pregnancy, abortion, and contraception. 
• The state of Texas also sued over the rule last month.

Setbacks and progress on the federal level.

The U.S. Supreme Court refused to hear cases on IVF and abortion. The Court let stand lower court rulings declaring that:

• Texas hospitals are not required to provide emergency abortion care, even when health and lives are at risk. The Supreme Court’s decision allows Texas to override the Emergency Medical Treatment and Labor Act (EMTALA), a federal law requiring hospital emergency rooms to provide “stabilizing treatment,” including emergency abortion care. 
• Frozen embryos are “children” —an alarming ruling by the Alabama Supreme Court, causing disarray for IVF clinics and their clients trying to build families. An Alabama IVF clinic had appealed that ruling to the U.S. Supreme Court, arguing it violates its right to due process and is “subjecting providers of critical reproductive services to the possibility of unprecedented punitive damages.”

The White House proposed new rules that would make over-the-counter birth control available at no cost.

• The proposal requires private health insurers to cover over-the-counter contraceptives such as emergency contraception, spermicides, and condoms without a prescription at no cost. 
• The rule would also cover Opill, the first daily over-the-counter birth control pill approved by the FDA last year. 
• Once finalized, the rule would expand contraception access for an estimated 52 million women of reproductive age with private insurance plans.

The Texas committee that reviews maternal deaths can’t get access to data on abortion-related maternal deaths. 

For years, data on abortion-related deaths have been excluded by Texas law from the information provided to the state’s maternal mortality review committee (MMRC). (MMRCs review maternal deaths that occur during or within one year of the end of pregnancy.)

In light of reports showing a spike in maternal deaths in Texas, the chairperson of the state’s MMRC recently called on the Texas legislature to reform the law and enable the group to review the data and get the full picture of the state of maternal mortality in Texas—including the deaths of people denied abortion care under the state’s abortion bans.

U.S. infant deaths have increased since the Supreme Court took away the right to abortion.

According to new research published in JAMA Pediatrics, state abortion bans are forcing people to carry nonviable pregnancies to term, leading to a rise in infant deaths.  

The research found a 7% increase in infant mortality overall and a 10% increase in infant mortality due to congenital conditions between June 2022 and December 2023, after the Court overturned Roe and allowed states to ban abortion entirely.  

“Prior to these abortion bans, people had the option to terminate if the fetus was found to have a severe congenital anomaly—we’re talking about organs being outside of the body and other things that are very severe and not compatible with life,” demographer and perinatal epidemiologist Alison Gemmill told the Los Angeles Times. If patients in these situations had no choice but to continue their pregnancies, she added, “those babies would die shortly after birth.” 

The report’s findings echoed the rise in infant mortality seen in a study Gemmill published in June documenting Texas’s infant deaths since its 2021 law banning abortion after about the sixth week of pregnancy. That study reported a nearly 13% increase in infant mortality and a 23% increase in infant deaths due to congenital anomalies in the state.

November 12: Trial on Idaho lawsuit filed by women denied abortions, with a livestream of oral arguments and testimony.   

• An Idaho state court will hear testimony and arguments in the Center’s case, Adkins v. State of Idaho, on whether to block the state’s abortion bans as they apply to dangerous pregnancy complications.
• Four women who faced health- and life-threatening complications but were denied abortion care, and doctors, are scheduled to testify at the trial.  
• The trial will begin at 9 a.m. MT (11 a.m. ET) on Tuesday, November 12 at the Ada County District Court in Boise. The proceedings will be livestreamed from the court room—watch here.