Changing Laws and Litigation Post-Dobbs: The State of Reproductive Rights as of July 27 | Morgana Lewis

Federal and state activity in the first weeks after the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization decision largely focused on litigation and executive and state legislative action to protect access to abortion. As this activity continues, we are also witnessing the first serious legislative activity to restrict access to abortion in light of the Dobbs. This preview provides updates in these areas as of July 27, 2022.

FEDERAL AND STATE DISPUTES

A panel of the United States Court of Appeals for the Eleventh Circuit released an injunction against the application of Georgia’s “Fetal Heartbeat” Act of 2019 on July 20, 2022, allowing the law to take effect immediately. The ruling also upheld the law’s definition of a “natural person” as “any human being, including an unborn child.” . . at any stage of development that is carried in the womb. The plaintiffs had argued that the definition was unconstitutionally vague in its application to other state laws, such as the criminal prohibition on homicide. The panel disagreed, stating that the definition was not vague on its face, even though “there may be vague applications of this definition in other provisions of the Georgia Code.” This is the first “person” law to be confirmed afterDobbs and may encourage other state legislatures to enact similar laws.

Litigation over the enforcement of state abortion laws also continues in state courts. A Louisiana state judge has extended a temporary injunction on Louisiana’s trigger law until the litigation is concluded. Similar injunctions remain in place against abortion laws in Idaho, Kentucky, Michigan, Utah and West Virginia. In addition, the Texas Supreme Court issued a partial injunction prohibiting the enforcement of individual criminal penalties in the pre-deer criminal status.

STATE LEGISLATION AND REFERENDA

Kansas

Kansas voters will consider a amendment to their state constitution on August 2, 2022. The amendment states that the Kansas Constitution does not create a right to abortion and gives the state legislature the power to regulate abortion services. The amendment seeks to overturn a 2019 Kansas Supreme Court ruling that found abortion to be protected by the state constitution.

This is the first measure of access to abortion considered by voters since the decision of Dobbs and could provide important information about public opinion on the issue. Media reports suggest Kansas voters are tightly divided.

Indiana

The Indiana General Assembly met in a special session to consider abortion legislation on July 25, 2022.

Indiana Senate Republicans have proposed a invoice which would prohibit abortion in all cases except where necessary to prevent substantial permanent harm to the life of a pregnant person or where the pregnancy is the result of rape or incest. The bill’s prohibitions would apply to “any person” who knowingly or intentionally terminates a human pregnancy, except as permitted by Indiana law. The bill does not explicitly apply to employers’ insurance or benefit plans and does not seek to prohibit extraterritorial conduct.

Republicans in the Indiana House of Representatives have yet to introduce a companion measure. The Indiana General Assembly has until August 14, 2022 to approve a measure. The Indiana Senate aims to approve its measure by July 29, when the Indiana House will consider it.

West Virginia

West Virginia was to hold a special session on state income taxes beginning July 25, 2022. Shortly before the start of the session, the governor of West Virginia amended the proclamation of the special session to include abortion. This follows a state court ruling last week that struck down the pre-deer criminal prohibition on grounds of vagueness.

Republicans in the House of Delegates introduced a bill, HB 302, which states that an abortion cannot be performed or induced or attempted to be performed or induced unless, in the reasonable medical judgment of a licensed West Virginia healthcare professional, there is a non-medically viable fetus , an ectopic pregnancy or a medical emergency that creates a serious risk of substantial and irreversible physical harm to the pregnant person. The bill excludes miscarriages, stillbirths, in vitro fertilization (IVF) and research on human fetal tissue from the definition of abortion. Any person who administers any drug or other thing or uses any means with intent to terminate a pregnancy in a pregnant person, except as permitted by West Virginia law, shall be guilty of a felony and liable to a prison sentence of 3 to 10 years. The bill exempts from penal sanctions the pregnant person requesting or benefiting from an abortion.

The West Virginia House Judiciary Committee is scheduled to hold a public hearing on HB 302 on July 27, 2022, and the House will likely vote on it the same day.

Caroline from the south

The South Carolina General Assembly is not officially in session, but its members have continued to work on legislation in that space.

The state House of Representatives convened a special “ad hoc” committee to recommend new legislation after Dobbs. The committee approved a work document on July 19, 2022, which prohibits anyone from knowingly administering, prescribing, or paying for any drug or substance with the specific intent of causing or encouraging the abortion of a pregnant person or using or knowingly employing any instrument, device, means or procedure on a pregnant person with the specific intent of causing or encouraging an abortion.

The bill provides exceptions to protect the life of the pregnant person and authorizes abortion in the event of an ectopic pregnancy or to remove an aborted embryo or fetus. The bill is not intended to prohibit extraterritorial behavior, except for a ban on unlicensed South Carolina physicians prescribing abortion drugs to people within South Carolina’s borders. . It’s unclear when the working draft will be considered by the South Carolina House Judiciary Committee or the South Carolina House of Representatives.

In the South Carolina Senate, three members presented a invoice, S. 1373, June 28, 2022, which reflects model legislation proposed by the National Right to Life Committee. The legislation is extensive and would prohibit all abortions except when necessary to prevent the death of the pregnant person. The bill further makes it illegal to knowingly or intentionally aid, encourage or conspire with another person to perform an abortion – including by providing information or hosting or maintaining a website that provides information about obtaining an abortion – and prohibits people from engaging in any “type of prohibited abortion activities,” such as investing in, being employed by, or generally assisting an entity that performs abortions or assists and encourages abortions The level of support for this legislation is unclear.

FEDERAL ACTION

The United States House of Representatives passed HR 8373, the Right to Contraception Act, July 21, 2022. The legislation affirms that people have the legal right to obtain contraceptives and states that these rights must not be limited or infringed by requirements that impede access to contraceptives. contraceptives or information about contraceptives. The future of legislation in the US Senate is uncertain.

REPRODUCTIVE RIGHTS: POST–DOBBS IMPACT

Our Reproductive Rights Task Force closely monitors and analyzes the impact of state laws regulating access to abortion to advise clients on how best to respond. Visit our centralized portalwhich brings together our ideas and analyzes of Dobbs and its subsequent influence on state laws across the United States.

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