Supreme Court Asked to Stay Abortion Pill Rulings

Today both the FDA and the manufacturer of the abortion drug mifepristone filed with the U.S. Supreme Court applications for a stay of the Texas federal district court's Order invalidating the FDA's approval of the drug. The 5th Circuit Court of Appeals allowed part of the district court's order to remain in effect. Today's Applications for a Stay were filed with Justice Alito, the Justice assigned by the Court to receive emergency applications from the 5th Circuit.  Here is the filing by Danco Laboratories, and here is the Solicitor General's filing on behalf of the FDA.  Axios reports on the filings.

Florida Enacts More Restrictive Abortion Law

Yesterday, Florida Governor Ron DeSantis signed SB 300 (full text) which bans abortions after 6 weeks of pregnancy, amending the state's prior law that permitted abortions until 15 weeks.  Under the new law, exceptions remain for saving the mother's life or preventing imminent substantial and irreversible physical impairment of a major bodily function other than a psychological condition. There are also exceptions before the third trimester where the fetus has a fatal fetal abnormality, and during the first 15 weeks in cases of documented rape, incest or human trafficking.  A press release from the Governor's office announcing the signing or the said in part:

While other states like California and New York have legalized infanticide up until birth, Governor DeSantis has enacted historic measures to defend the dignity of human life and transform Florida into a pro-family state.

The White House issued a statement sharply criticizing the bill.  CNN reports on the new law.

5th Circuit Allows Part of Stay on Abortion Pills To Remain; U.S. Will Appeal to Supreme Court

 In Alliance for Hippocratic Medicine v. Food & Drug Administration,(5th Cir., April 12, 2023), the U.S. 5th Circuit Court of Appeals granted a partial stay of a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. The appeals court held that the statute of limitations barred a challenge to the FDA's initial approval of the drug in 2000. However, the court refused to stay the district court's disapproval of changes the FDA made in 2016.  Those changes significantly reduced prior restrictions on the administration and use of the drug. The court said in part:

Here, applicants have failed to carry their burden at this preliminary stage to show that FDA’s actions were not arbitrary and capricious. We have two principal concerns in that regard. First, FDA failed to “examine the relevant data” when it made the 2016 ... changes.... That’s because FDA eliminated ... safeguards based on studies that included those very safeguards....

Second, the 2016 ... Changes eliminated the requirement that non-fatal adverse events must be reported to FDA. After eliminating that adverse-event reporting requirement, FDA turned around in 2021 and declared the absence of non-fatal adverse-event reports means mifepristone is “safe.”... This ostrich’s-head-in-the-sand approach is deeply troubling.... It’s unreasonable for an agency to eliminate a reporting requirement for a thing and then use the resulting absence of data to support its decision.

Reuters reports on the decision. 

Earlier today, the Justice Department announced that it would seek emergency relief from the U.S. Supreme Court.

FDA Seeks Stay Pending Appeal of Order Ending Approval of Mifepristone

The Justice Department on behalf of the U.S. Food and Drug Administration yesterday filed an Emergency Motion for a Stay Pending Appeal (full text of motion) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (5th Cir., filed 4/10/2023). The motion seeks a stay while an appeal is heard by the 5th Circuit of a Texas federal district court decision setting aside the 2000 FDA order approving doctors prescribing mifepristone for medical abortions. The FDA argues in part:

The [district] court repeatedly characterizes mifepristone as unsafe. But over the last two decades, the available evidence conclusively demonstrates that mifepristone is safe under the approved conditions of use. More than five million women have used mifepristone to terminate their pregnancies in the United States.... Mifepristone is also approved in dozens of other countries..... The literature reflects “exceedingly rare” rates of serious adverse events.

AP reports on the appeal.

Contradictory Orders From 2 District Court on FDA's Approval of Abortion Pill

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (ND TX, April 7, 2023), a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. The FDA rules (Subpart H) relied upon to approve the drug apply to "new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments...."  The court said in part:

[T]o satisfy Subpart H, FDA deemed pregnancy a “serious or life-threatening illness[]” and concluded that mifepristone “provide[d] [a] meaningful therapeutic benefit to patients over existing treatments.” See 21 C.F.R. §§ 314.500; 314.560. FDA was wrong on both counts....

Pregnancy is a normal physiological state most women experience one or more times during their childbearing years — a natural process essential to perpetuating human life. Defendants even admit pregnancy is not an “illness.”...

FDA also exceeded its authority under the second requirement of Subpart H. In addition to treating a serious or life-threatening illness, chemical abortion drugs must also provide a “meaningful therapeutic benefit” to patients over surgical abortion... [T]his cannot be the case because chemical abortion drugs do not treat “serious or life-threatening illnesses” — a prerequisite to reaching the second requirement.... Similarly, chemical abortion drugs cannot be “therapeutic” because the word relates to the treatment or curing of disease.

The court stayed the FDA's approval of mifepristone, but stayed the effectiveness of its order for 7 days so the government can appeal to the U.S. 5th Circuit Court of Appeals for emergency relief.  President Joe Biden issued a statement (full text) criticizing the court's decision and reporting that the Justice Department has already filed an appeal.  Vice President Kamala Harris also issued a statement (full text) criticizing the decision.

Meanwhile, in State of Washington v. U.S. Food & Drug Administration, (ED WA, April 7, 2023), a Washington federal district court issued a preliminary injunction barring the FDA from "altering the status quo and rights as it relates to the availability of Mifepristone" in the 17 states and District of Columbia that are plaintiffs in the case. Plaintiffs are challenging certain requirements for prescribing mifepristone added in 2023.

Seattle Times reports on the decisions.

Militant Pro-Abortion Group Sued Under Access to Clinic Act

Suit was filed this week in a Florida federal district court against a militant abortion rights group by a pro-life pregnancy counseling and medical clinic that was vandalized and whose fundraising gala was disrupted by the group.  The complaint (full text) in Heartbeat of Miami, Inc. v. Jane's Revenge, (MD FL, filed 3/29/2023), charges violations of the Freedom of Access to Clinic Entrances Act, trespass, civil conspiracy and violation of the Florida RICO statute.

At the same time, Florida's attorney-general filed suit in the same court against two members of the organization who allegedly participated attacks against three abortion counseling centers in Florida. The complaint (full text) in Moody v. Freestone, (MD FL, filed 3/29/2023), seeks an injunction and civil penalties, invoking the Freedom of Access to Clinic Entrances Act.

Daily Signal and Fox News report on the lawsuits.

New Arkansas Law Authorizes Monument to Unborn Children on Capitol Grounds

As reported by ABC News, on Thursday Arkansas Governor Sarah Huckabee Sanders signed SB307 (full text) into law. The new law provides for a privately funded Monument To Unborn Children to be placed on the state Capitol grounds.  The monument is to commemorate "unborn children aborted during the era of Roe v. Wade..." The monument is to be funded by gifts, grants and donations from individuals and organizations.  The law also provides for legal defense of the monument if it is challenged, for maintenance of the monument and for replacement of it "if necessary due to catastrophic damage."

Transcript of Hearing Released in Challenge to FDA Approval of Mifepristone

On March 15, Judge Matthew Kacsmaryk in the federal district court in the Northern District of Texas held a hearing on the preliminary injunction motion in the widely-watched case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. The full transcript of the hearing has now been released. As previously reported, the case challenges the FDA's long-standing approval for use in the United States of the chemical abortion drug mifepristone. Axios reports on the hearing.

New Utah Law Requires All Abortions To Be In Hospitals, Not In Clinnics

On Wednesday, Utah Governor Spencer Cox signed HB467 (full text) which requires that after January 1, 2024, all abortions be performed in hospitals, not in abortion clinics. Additionally, it expands the exception for rape and incest to also include any pregnancy of a child under 14 years of age. In another change, however, the new law allows abortions in all of these cases only before 18 weeks of pregnancy. The new law also makes a number of other changes in the state's abortion statutes.  Legislative history of the bill is available here.  AP reports on the new law. AP says in part:

Last year’s Supreme Court ruling [in Dobbs] triggered two previously passed pieces of legislation— a 2019 ban on abortion after 18 weeks and a 2020 ban on abortions regardless of trimester, with several exceptions including for instances of risk to maternal health as well as rape or incest reported to the police. The Planned Parenthood Association of Utah sued over the 2020 ban, and in July, a state court delayed implementing it until legal challenges could be resolved. The 18-week ban has since been de facto law.

Abortion-access proponents have decried this year’s clinic ban as a back door that anti-abortion lawmakers are using to limit access while courts deliberate.

Kamala Harris: Abortion Bans Without Rape and Incest Exceptions Are "Immoral"

Vice President Kamala Harris spoke yesterday in Des Moines, Iowa at a Roundtable on Reproductive Rights. (Full text of her remarks). She said in part:

We have seen what I would consider and do consider, as a former prosecutor, to be an immoral approach to survivors of rape or incest where, in states, there is even no exception after an individual has survived such an act of violation to their body and then, by their state, being deprived of the ability, after that, to make other decisions about their body.  It’s immoral. 

And let’s be clear: On this issue, one does not have to abandon their faith or deeply held beliefs to agree the government should not be telling her or any individual what to do with their body. 

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

North Dakota Supreme Court: State Constitution Protects Right to Abortion to Save Life or Health of Mother

In Wrigley v. Romanick, (ND Sup. Ct., March 16, 2023), the North Dakota Supreme Court refused to vacate a trial court's preliminary injunction that barred enforcement of the state's 2007 abortion ban whose effectiveness was to be triggered by the overruling of Roe v. Wade. In particular, the court concluded that the absence of an exception in the abortion ban for preserving the health of the mother was a critical defect in the law.  The court said in part:

The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health....

Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty.... North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood....

Justice Tufte filed a concurring opinion, saying in part:

At this time we consider only the preliminary injunction, and we need not decide the constitutionally necessary scope of any health exception.

Justice McEvers, joined by Justice Crothers and Judge Narum, filed an opinion concurring specially, and saying in part:

I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution.

NPR reports on the decision.

Michigan Legislature Repeals 1931 Criminal Abortion Ban

The Michigan legislature on Wednesday gave final passage to HB-4006 (full text) which repeals Section 750.14 and 750.15 of the Michigan Penal Code. These sections, which were enacted in 1931, criminalize abortion and require pharmacies to keep records of purchasers of abortion medications and of physicians prescribing them. The bill now goes to Governor Gretchen Whitmer for her signature. It is expected that she will sign the bill. WZZM13 News reports on the bill. An injunction against enforcement of Section 750.14 had previously been issued by the state Court of Claims (see prior posting) and the section was effectively overridden by a state constitutional amendment guaranteeing reproductive freedom passed by Michigan voters last November.

Wyoming Legislature Passes Abortion Bans; Governor Undecided on Whether to Sign Them

On March 3, the Wyoming legislature gave final passage to two bills outlawing most abortions. HB 152 (full text) outlaws medical and surgical abortions with several exceptions. Exceptions include ectopic pregnancy, treatment of the woman for cancer or another disease where the medical treatment may be fatal to the unborn baby, preventing the death or substantial risk of death of the mother, and incest or sexual assault (which are to be reported to law enforcement). SF 109 (full text) prohibits prescribing or distributing any abortion drug, with exceptions for imminent physical peril that endangers the woman's life or health, and for rape or sexual assault. WyoFile reports that Governor Mark Gordon is still deciding whether or not to veto either or both bills.

UPDATE: Gov. Gordon signed SF 109 and allowed HB 152 to become law without his signature.

10th Circuit: Abortion Clinic Sidewalk Demonstrators Lose Challenge to Disturbing-the-Peace Ordinance

In Harmon v. City of Norman, Oklahoma, (10th Cir., March 1, 2023), the U.S. 10th Circuit Court of Appeals affirmed a trial court's dismissal of challenges to the city's disturbing-the-peace ordinance brought by abortion clinic sidewalk demonstrators who preach to clinic visitors in an attempt to persuade them against abortion. The court said in part:

The demonstrators filed a three-count complaint, seeking relief from the City and Officer Jeff Robertson under 42 U.S.C. § 1983. The complaint asserted as-applied and facial challenges to the ordinance under the Free Speech Clause, Free Exercise Clause, and the Due Process Clause of the U.S. Constitution, and further alleged that Norman failed to train its police officers. The complaint also requested preliminary and permanent injunctions to stop the City from enforcing the ordinance....

We hold that § 15-503(3) is constitutional under the Free Speech Clause as applied to the demonstrators. The demonstrators have not shown that the subsection was content-based, insufficiently tailored, or fatal to their sidewalk ministry....

The district court determined that rational-basis deference applied [to the Free Exercise claim] because the demonstrators presented no evidence that § 15-503(3) was religiously motivated. We agree....

The court went on to conclude that plaintiffs lacked standing to bring facial challenges to several portions of the Ordinance. It also concluded that the Ordinance's ban on "loud or unusual sounds" is not unconstitutionally vague or overbroad.

ACLU Launches Abortion Criminal Defense Initiative

The ACLU announced this week that it is launching an Abortion Criminal Defense Initiative. It is offering legal representation, or assistance in finding a lawyer, for individuals facing criminal investigation or prosecution related to abortion care. Its Intake Page says that its focus is on those targeted because they obtained an abortion from a doctor or other health care professional, because they helped someone else get an abortion, or were an abortion provider.

2nd Circuit: Expressive Association Challenge to NY "Boss Bill" Can Move Ahead

In Slattery v. Hochul, (2d Cir., Feb. 27, 2023), the U.S. 2nd Circuit Court of Appeals held that the district court should not have dismissed an expressive association challenge to New York's "Boss Bill," a law that prohibits employers from discriminating against employees on the basis of reproductive health choices made by the employee or a dependent. Plaintiffs are anti-abortion crisis pregnancy centers and the president of one of them. The court said in part:

[W]e conclude that Evergreen plausibly alleged that § 203-e imposes severe burdens on Evergreen’s right to freedom of expressive association. The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization.... The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views....

Still, “[t]he right to associate for expressive purposes is not … absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”...

We hold that at this stage of the litigation, New York has not shown that § 203-e satisfies this standard....

It may be the case that preventing discrimination based on one’s choice to engage in certain, legally authorized conduct is a compelling state interest. But we need not decide that question here. Even if we answer in the affirmative, that interest cannot overcome the expressive rights of an association dedicated to outlawing or otherwise opposing that specific conduct....

The court went on to affirm the dismissal of plaintiffs' free speech, free exercise of religion and vagueness challenges. Bloomberg Law reports on the decision.

Texas Supreme Court Dismisses Defamation Actions Brought Against Anti-Abortion Proponents

In Lilith Fund for Reproductive Equity v. Dickson, (TX Sup. Ct., Feb. 24, 2023), the Texas Supreme Court in two companion cases ordered trial courts to dismiss defamation actions brought against Mark Lee Dickson and Right to Life East Texas.  At issue were statements Dickson made on his own and on Right to Life's Facebook pages describing plaintiffs, two pro-choice organizations, as "criminal organizations" and saying that the organizations "exist to help pregnant Mothers murder their babies." The postings were part of a campaign to convince other Texas cities to enact anti-abortion ordinances similar to one enacted in 2019 by Waskom, Texas. The court, concluding that defendants' postings were expressions of opinion rather than fact, and that the suits should be dismissed under the Texas Citizens Participation Act, said in part:

A reasonable person, equipped with the national, historical, and temporal context, and informed by the overall exhortative nature of his posts, could not understand Dickson as conveying false information about the plaintiffs’ underlying conduct, as opposed to his opinion about the legality and morality of that conduct. A reasonable person would understand that Dickson is advancing longstanding arguments against legalized abortion, in the context of an ongoing campaign to criminalize abortion, on public-discourse sites regularly used for such advocacy. 

The plaintiffs argue that opinion based on a false assertion of fact can be actionable defamation. In other words, they argue that Dickson’s advocacy declaring them to be “criminal” goes beyond mere opinion....

Notable is what Dickson does not say in his statements. He does not refer to the Penal Code nor to any Texas criminal law. He does not falsely claim that the plaintiffs have been arrested or prosecuted, or otherwise indicate to the reasonable person that the plaintiffs have been convicted of crimes based on specific conduct. To the contrary, Dickson invokes a moral premise, calling for his readers to change existing law to match that moral premise....

A subjective belief, even when sincerely held by a speaker, is not the standard for determining whether a statement of opinion is defamatory. The touchstone is the reasonable reader’s reception, not the speaker’s self-serving statements of intent or interpretation.

Justice Devine, joined by Justice Blacklock, filed a concurring opinion saying in part:

I join in full the Court’s well-reasoned and thorough opinion. But it is regrettable that it took the courts of our State so long to dismiss the Funds’ obviously meritless lawsuits that were filed to silence their political adversaries. Defamation law must never become a weapon of intimidation against opponents, no matter the party or the side of a political issue.

The Texas Supreme Court has links to the briefs and oral arguments in the case.  Jonathan Turley discusses the decision.

Another Challenge to Texas' Heartbeat Abortion Ban Fails on Standing Grounds

In Davis v. Sharp, (WD TX, Feb. 15, 2023), another attempt to challenge Texas' SB 8, the heartbeat abortion ban enforceable only by private lawsuits, failed on standing grounds.  The suit was brought by Stigma Relief Fund and three of its supporters against defendants who threatened to enforce the law against abortion funds and their associates for aiding illegal abortions. However, because defendants filed statements disclaiming any intention to sue the particular fund and supporters who are plaintiffs in this case, plaintiffs failed to show any injury sufficient to give them standing to sue. Law & Crime reports on the decision.

Military Will Provide Travel Allowances for Service Members Who Need to Travel to Obtain Abortions

In a press release issued on Feb. 16, the Department of Defense announced that it has issued policy memoranda (full texts1, 2, 3) that assure access to reproductive health care for service members.  Among other things, the policies will now allow service members to receive travel and transportation allowances if abortion or assisted reproduction services are not available in the local area. The health care services however are at the service member's own expense. Different policies apply to covered abortions, those where the life of the mother would be endangered if the fetus were carried to term or the pregnancy was the result of rape or incest.

Kentucky Supreme Court Finds Procedural Problems with Abortion Providers' Attempt to Enjoin Abortion Bans

In Cameron v. EMW Women's Surgical Center, P.S.C., (KY Sup. Ct., Feb. 16, 2023), the Kentucky Supreme Court considered challenges by abortion providers to two Kentucky statutes banning abortions. The "trigger ban" prohibits all abortions, except when necessary to preserve the life of the mother or prevent permanent impairment of a life-sustaining organ. The "heartbeat ban" bars abortions after there is a detectable human heartbeat, with a similar exception for preserving the life of the mother or preventing irreversible impairment of a major bodily function. The trial court issued a preliminary injunction preventing enforcement of both laws. The state Court of Appeals granted emergency relief and dissolved the injunction, and then transferred the case to the state Supreme Court. In this opinion, the state Supreme Court affirmed the Court of Appeals dissolution of the injunction, holding that abortion providers lack third-party standing to challenge the laws on behalf of their patients. However, they held that abortion providers do have standing to challenge the "trigger ban" on their own behalf, and remanded the case to the trial court on that issue. Justice Lambert, joined by Justice Conley, said in part:

[T]he abortion providers’ arguments that the trigger ban improperly delegates legislative authority and that becomes effective on the authority of an entity other than the General Assembly remain live issues. If the abortion providers were to receive a favorable ruling on those issues, the statute would be invalidated if the offending enactment provision could not be severed. This in turn would provide the abortion providers with the relief they seek, satisfying the redressability prong of constitutional standing. 

However, although the abortion providers have constitutional standing to challenge the trigger ban on the foregoing two grounds, they made no arguments concerning their own rights in relation to the heartbeat ban. Their only assertion against the heartbeat ban was that it violated their patients’ constitutional rights to privacy and self-determination....

[T]he personal harm asserted by the abortion providers, the harm to their business, is not considered an irreparable injury for the purposes issuing a temporary injunction.

The circuit court also erred when balancing the equities involved....

To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date....

This matter is accordingly remanded to the circuit court for the determination of the first-party constitutional claims of the abortion providers as to the trigger ban. Specifically, whether the trigger ban was an unlawful delegation of legislative authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution and if the trigger ban became effective upon the authority of an entity other than the General Assembly in violation of Section 60 of the Kentucky Constitution.

Chief Justice VanMeter concurred only in the result.

Four other Justices each filed separate opinions, concurring in part and dissenting in part.

Justice Bisig, joined by Justice Keller, said in part:

Thus, while I concur with the majority’s conclusion that Plaintiffs have first-party standing to challenge the Trigger Ban and with their recognition of third-party standing for purposes of Kentucky law, I respectfully dissent from the remainder of their Opinion. I would reverse the Court of Appeals, affirm the trial court, and direct reinstatement of the temporary injunction....

Because the statutes infringe upon a pregnant patient’s fundamental rights to pursue safety and to self-determination and are likely not sufficiently narrowly tailored to a compelling government interest, I would hold that EMG presented a substantial question on the merits of the case below.

Justice Keller, joined by Justics Bisig, concurred in part, saying in part:

I concur with the Majority’s holding that the physicians have first-party standing to assert their claims in the case at bar. However, I dissent from the remainder of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I also believe that the physicians have third-party standing to assert the claims of their patients and that the trial court did not abuse its discretion in granting the temporary injunction.

Nickell, J. concurred in part and dissented in part, saying in part:

I concur with the view that the trial court abused its discretion by enjoining the enforcement of the abortion bans. However, I respectfully dissent from any conclusion that Appellees have first-party standing or third-party standing to assert this pre-enforcement constitutional challenge. There should not be one set of procedural rules for abortion providers and another for everyone else.

Thompson, J. concurred in part, saying in part:

I concur in the majority opinion that first party standing was established for the abortion providers and dissent from its conclusion that they lacked third party standing. I believe we should err on the side of finding standing when at all possible, so that parties can gain needed review. 

Accordingly, I urge the trial court to fully exercise its authority on remand by freely allowing intervention by all interested parties so that first party standing may be established for all issues....

Liberty Counsel issued a press release announcing the decision. CNN reports on the decision.