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Part 2: An Update on the Federal and State E-Roe-sion or P-Roe-tection of Abortion Rights

The abortion debate continues in America after the Supreme Court decision in Dobbs v. Jackson and the midterm elections on November 8th. Following our first post in this series, there have been a number of noteworthy developments* that occurred over the past month including several significant events at both federal and state levels as well as recent activity by registered voters during the midterms to protect access to reproductive care.

  • Federal:

    • The Pentagon issued a memo providing that federal funds may be used to enable troops and their dependents to travel to obtain abortions. The memo also includes other protections for service members and their dependents, such as sufficient time off from work to seek abortion services.

    • The Administration for Children & Families (a division of the Department of Health and Human Services) directed Office of Refugee Resettlement staff to take reasonable steps to prioritize placement of immigrants who are pregnant minors and victims of sexual-based crimes in states without abortion bans, provide them with broad access to reproductive health care, and/or to facilitate access to pregnancy-related medical service and options, when requested.

  • Arizona: An Arizona court order clarified that, until ongoing litigation over abortion within the state is settled, its 1864 abortion ban will not be enforced.

  • California:

    • California’s attorney general announced a task force charged with enforcing reproductive rights and protecting individuals who seek abortion services.

    • The attorney general released guidance for out-of-state patients seeking abortion services in California.

    • In the November 8th election, California voters voted in favor of Proposition 1, which included a state constitutional amendment to secure access to abortion and contraceptives.

  • Kentucky: On August 18, 2022, the Kentucky Supreme Court refused to reinstate an injunction that would block a six-week abortion ban and trigger ban from taking effect, resulting in abortion remaining illegal following six weeks’ gestation (absent a medical emergency). There is no exception for rape or incest. Oral arguments were heard by the Kentucky Supreme Court on November 15, 2022, but an order or decision has not yet been issued. It remains to be seen whether the November 8th election, during which Kentucky voters voted against Amendment 2 (which would have eliminated any possibility that the state’s constitution could be interpreted as creating a right to an abortion), will have any effect on the outcome of this case.

  • Michigan: Before the November 8th election and after the Dobbs decision, a dormant state law banning abortion was temporarily blocked by courts. Michiganders voted in favor of Proposal 3, to add the right to abortion to the state constitution, which will prevent a situation where the court ruling could be reversed on appeal.

  • Montana: In the November 8th election, Montana voters rejected Referendum 131, which would have required medical workers to provide life-saving medical intervention to infants born prematurely or face penalties of up to $50,000 in fines and up to 20 years in prison.

  • North Carolina: Providers in North Carolina, in support of their motion for a preliminary injunction, argued that certain licensure restrictions on providing medication abortions should be lifted to expand access to abortion services for North Carolinians and out-of-state patients traveling to North Carolina seeking abortion services. If granted, advanced practice clinicians, such as nurse practitioners, midwives, and physician assistants, would be permitted to provide medication abortion to alleviate the increased burden on abortion access.

  • North Dakota: The state’s restrictive abortion ban was placed on hold following an order granting a preliminary injunction, which prevents North Dakota’s trigger ban from taking effect.

  • Ohio: After a trial judge blocked the state’s ban on abortion after six weeks of pregnancy (resulting in abortions up to 22 weeks of pregnancy remaining legal), the Ohio Attorney General’s office appealed the decision.

  • South Carolina: A ban on abortion after six weeks was temporarily blocked – as a result, abortions in South Carolina continue to be temporarily legal until 20 weeks’ gestation. South Carolina providers argued in their reply to the Attorney General’s brief that the ban would violate individuals’ right to privacy under the state’s constitution.

  • Texas: The Biden Administration appealed to the Fifth Circuit, requesting reconsideration of the district court’s decision to the block implementation of HHS’s guidance in the State of Texas, which provides that, under EMTALA, abortions may need to be furnished to individuals seeking emergency medical treatment, regardless of whether abortions are lawful in that state, in certain circumstances.

  • Vermont: In the November 8th election, Vermont voters passed Proposal 5, providing individuals in the state with a constitutional right to personal reproductive autonomy.

The Jackson v. 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.

*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 the morning of November 10, 2022, but it does not address all potential legal issues or jurisdictional differences, and the information presented may no longer be current.

Gabriela Garcia-Bou and Lotan Helfman also contributed to this article.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 320
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About this Author

Special Counsela

Amy Dilcher is special counsel in the Corporate Practice Group in Sheppard Mullin's Washington D.C. office.

Amy’s practice focuses on transactional and regulatory matters, helping healthcare organizations achieve their strategic business initiatives while navigating complex regulatory issues and mitigating risks associated with healthcare regulations in the areas of strategic affiliations, mergers and acquisitions, hospital and physician transactions, managed care matters, and other contractual arrangements. She also advises on a wide range of...

202-747-1875
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