Indiana Abortion Ban Preliminarily Enjoined

In Planned Parenthood Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 22, 2022), an Indiana state trial court judge yesterday issued a preliminary injunction barring enforcement of Indiana's recently enacted restrictive abortion ban. The court said in part:

Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term-- are included in [Indiana Constitution] Article I, §1's protections....

Because of these considerations, and the history of Indiana's constitution being interpreted to provide greater protection to individual citizens that its federal counterpart, there is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the Plaintiffs will prevail on the merits as to their claim that S.B. 1 violates Article I, Section 1 of the Indiana Constitution.

The case was decided by a Special Judge after two other judges recused themselves (Background). ACLU Indiana issued a press release announcing the decision. ABC News reports that the state plans to file an appeal of the decision, and that abortion clinics in the state are preparing to reopen.

West Virginia Legislature Passes Restrictive Abortion Bill

The West Virginia legislature yesterday gave final passage to House Bill 302 (full text) which outlaws most abortions. It provides in part:

An abortion may not be performed or induced or be attempted to be performed or induced unless in the reasonable medical judgment of a licensed medical professional: (A) there exists a nonmedically viable fetus; (B) there exists an ectopic pregnancy; or (C) there exists a medical emergency.

In addition ..., an abortion may be performed by a licensed medical professional when:(1) the patient is a victim of sexual assault or incest; (2) a report is made to a qualified law enforcement officer; (3) the licensed medical professional determines that probable gestational age of fetus has not exceed 14 weeks; and (4) the licensed medical professional complies with the provisions of §16-2R-5 [minors and reporting provisions].

A prison sentence of 3 to 10 years is prescribed for anyone (other than the mother) who violates the abortion prohibitions. West Virginia Public Broadcasting reports on the bill. [Thanks to Scott Mange for the lead.]

Indiana Abortion Restrictions Challenged Under State RFRA

A class action lawsuit was filed yesterday in an Indiana state trial court court on behalf of all persons in the state whose religious beliefs direct them to obtain abortions in situations prohibited by the state's recently enacted restrictive abortion ban. The suit was filed by five anonymous plaintiffs and an organization, Hoosier Jews For Choice.  The complaint (full text) in Anonymous Plaintiffs 1-5 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., filed 9/8/2022), contends that the law violates Indiana's Religious Freedom Restoration Act. ACLU issued a press release announcing the filing of the lawsuit.

Michigan Court Permanently Enjoins Enforcement Of Pre-Roe Abortion Law

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., Sept. 7, 2022), the Michigan Court of Claims issued a permanent injunction barring enforcement of Michigan's pre-Roe abortion ban.  The order follows on the Court's previous preliminary injunction against enforcement. It held that enforcement of the ban would violate both the due process and equal protection clauses of the Michigan constitution. The Court rejected the argument that it should interpret the due process clause in the state Constitution to track that of the due process clause in the U.S. Constitution. The court said in part:

... Dobbs relied on a version of history that began in the 13th Century and ended in 1868, when the federal Due Process Clause was ratified. Almost a century, two world wars, a constitutional amendment granting women the right to vote, the emergence of the civil rights movement, and a sea change in the laws regarding women's status in society separate the adoption of the fourteenth amendment from the ratification of our 1963 Constitution.... A court charged with an examination of the ideas giving rise to a 1963 Constitution is not assisted by an historical analysis of a clause drafted in a far different social and legal environment. What was "deeply rooted" in history and tradition in 1868, a focal point in Dobbs, bears little resemblance to the understanding of personal freedom, particularly for woman and people of color, motivating those who drafted and ratified our 1963 Constitution. The Court therefore rejects the intervenors' claim that this Court must reflexively adhere to Dobb's conclusions about the reach of the federal Due Process Clause....

By depriving women who choose abortion the ability to exercise a fundamental right while protecting the same right for pregnant women who choose to continue their pregnancies, MCL 750.14 violates Michigan's Equal Protection clause....

By criminalizing abortion, MCL 750.14 prevents a woman who seeks to exercise a constitutional right from controlling her ability to work or to go to school, and thereby determining for herself the shape of her present and future life.

Responding to a state Court of Appeals opinion that the court of Claims previous preliminary injunction only binds the Attorney General and not independent county prosecutors, the Court ordered the Attorney General to serve a copy of the opinion and accompanying order on every county prosecuting attorney.

Michigan Governor Gretchen Whitmer issued a statement (full text) in support of the Court's decision. Bridge Michigan reports on the decision.

Michigan Supreme Court Says Abortion Rights Proposal Must Go On November Ballot

In Reproductive Freedom For All v. Board of State Canvassers, (MI Sup. Ct., Sept. 8, 2022), the Michigan Supreme Court in a per curiam Order of Mandamus directed the Board of State Canvassers to certify the proposed Reproductive Freedom For All state constitutional amendment for placement on the November 8 election ballot. The Board of State Canvassers had deadlocked 2-2 along party lines with those voting against approval citing a typographical problem that led to several words being run together at places in the text of the proposed amendment as set out in the petitions that were circulated. (See prior posting.) In its Order, adopted by a 5-2 vote, the Court said in part:

It is undisputed that there are sufficient signatures to warrant certification. The only challenge to the petition is in regard to whether there is sufficient space between certain words of the text of the proposed amendment. MCL 168.482(3) requires only that “[t]he full text of the amendment so proposed must follow the summary and be printed in 8-point type.” The “full text” of the amendment is present: regardless of the existence or extent of the spacing, all of the words remain and they remain in the same order, and it is not disputed that they are printed in 8-point type. In this case, the meaning of the words has not changed by the alleged insufficient spacing between them.

Chief Justice McCormack filed a concurring opinion, saying in part:

[Two members of the Board of State Canvassers] would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad. 

Justice Bernstein also filed a concurring opinion.  Justice Zahra filed a dissenting opinion, saying in part:

[T]he Court, under the pressure to decide the question forthwith in order to ensure timely production of the ballots, has decided to grant mandamus without oral argument. While I would prefer to engage in oral argument before deciding this issue, pressed for a ruling, I must conclude that plaintiffs have not met their burden of establishing a clear legal right to a writ of mandamus.

Justice Viviano filed a 14-page dissenting opinion, saying in part:

For well over a thousand years, we have conveyed thought and meaning by using spaces between words.... It was not always so. Ancient text employed scriptura continua, in which words were uninterrupted by word spaces.... But the objectives of reading in ancient times were different, with the focus being on memorization useful to an oral rather than a text-based culture....

If the full-text requirement is subject to an analysis that asks whether the meaning has sufficiently changed or become ambiguous enough to potentially mislead,... then presumably the determination of whether the full text is present involves at least some discretion. That is, a factual determination concerning the extent of the error and its probable effects must be made by the board. But if so, then it is hard to see how this decision can be characterized as ministerial and thus subject to mandamus.

NPR reports on the decision. 

Michigan Supreme Court To Decide Whether Abortion Rights Proposal Will Be On November Ballot

 As previously reported, backers of a proposed abortion rights amendment to the Michigan Constitution are appealing to the Michigan Supreme Court the refusal of the Board of State Canvassers to certify the proposal for the ballot.  Republicans on the Board created a deadlocked vote, contending that kerning of the text that ran some words together invalidated the petitions that were submitted. The complaint (full text) in Reproductive Freedom for All v. Board of State Canvassers, (MI Sup. Ct., filed 9/1/2022) is now available online, as are some of the amicus briefs filed in the case. Here are links to briefs from Michigan Attorney General Dana Nessel, from seven county Prosecuting Attorneys, and from a coalition of advocacy and religious groups. Bridge Michigan reports on these developments.

Suit Contends Indiana Abortion Restrictions Violate State Constitution

Suit was filed Tuesday in an Indiana state trial court challenging the state's recently-enacted law that bans abortions, with exceptions during early pregnancy to protect the life or to prevent serious health risk to the mother, in cases if lethal fetal anomaly, and in cases of rape or incest. Also all abortions are required to be performed in hospitals or hospital-owned outpatient surgical centers. The complaint (full text) in Planned Parenthood Great Northwest v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., filed 8/3-/2022), contends in part:

S.B. 1’s total abortion ban strips away the fundamental rights of people seeking abortion care in Indiana in violation of the State Constitution. It will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.

Courthouse News Service reports on the lawsuit.

Nurse Sues Clinic For Violating State Conscience Protections

Suit was filed yesterday in a Virginia state court by a Catholic nurse practitioner who was fired by a CVS Minute Clinic after she insisted that, for religious reasons, she would not provide or facilitate the use of hormonal contraceptives, Plan B and Ella which she considers abortifacients. For three years, the clinic had accommodated her religious beliefs, but it then changed its policy and refused to do so.  The complaint (full text) in Casey v. MinuteClinic Diagnostic of Virginia, LLC, (VA Cir. Ct., filed 8/31/2021) challenges her firing as a violation of Va. Code § 18.2-75 which provides that:

any person who shall state in writing an objection to any abortion or all abortions on personal, ethical, moral or religious grounds shall not be required to participate in procedures which will result in such abortion.

ADF issued a press release announcing the filing of the lawsuit.

Michigan Abortion Rights Amendment Faces Possible Ballot Exclusion Because of Typographical Formatting Errors

Earlier today, the Michigan Board of State Canvassers deadlocked 2-2, along party lines, in its vote on approving for inclusion on the November ballot an abortion rights state constitutional amendment. As reported by the Detroit Free Press, while backers had obtained far more than the minimum number of petition signatures need for inclusion on the ballot, challengers focused on the formatting of the text of the proposed amendment on the petition which erroneously ran several words together so that there were no spaces between the words. The Board of State Canvassers staff report said in part:

The Michigan Constitution of 1963 requires that the “petition shall include the full text of the proposed amendment”....

The RFFA petition includes the same letters, arranged in the same order, as the petition conditionally approved at the March 23rd Board meeting... Certain portions of the petition have smaller spaces between words; the spacing between words in some instances appears similar to the spacing between letters within words. The Michigan Election Law is silent on the amount of space that must be between letters and words in a petition.

Challengers argued that because of these typographical errors, the petitions do not contain the full text of the proposed amendment.

Under MCL §168.479, a decision of the Board of State Canvassers may be challenged by a petition filed with the state Supreme Court within 7 days of the decision. The group sponsoring the amendment, Reproductive Freedom For All, has already announced that it will appeal to the Michigan Supreme Court.

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

Court Enjoins Idaho Abortion Ban When It Conflicts With Federal Emergency Treatment Requirement

In United States v. State of Idaho, (D ID, Aug. 24, 2022), an Idaho federal district court enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The court said in part:

[T]he State of Idaho, including all of its officers, employees, and agents, are prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital based on their performance of conduct that (1) is defined as an “abortion” under Idaho Code § 18-604(1), but that is necessary to avoid (i) “placing the health of” a pregnant patient “in serious jeopardy”; (ii) a “serious impairment to bodily functions” of the pregnant patient; or (iii) a “serious dysfunction of any bodily organ or part” of the pregnant patient, pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii).

Idaho law permits an abortion only to save the life of the mother.  The Hill reports on the decision.

Court Enjoins Enforcement In Texas Of HHS Emergency Abortion Guidance

In State of Texas v. Becerra, (ND TX, Aug. 23, 2022), a Texas federal district court issued a preliminary injunction prohibiting enforcement in Texas of the Department of Health and Human Services' guidance to hospitals (and accompanying letter) which, relying on the federal Emergency Medical Treatment & Labor Act, requires hospital emergency rooms to perform certain abortions even when they violate Texas law. According to the Guidance, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition, EMTALA requires emergency rooms to perform it. The court's 67-page opinion said in part:

Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment.

Reuters reports on the decision.

Michigan County Prosecutors Temporarily Enjoined From Enforcing Pre-Roe Abortion Ban

As reported by Bridge Michigan, a Michigan state trial court judge yesterday issued a preliminary injunction barring county prosecutors from enforcing a 1931 statute banning abortion. The injunction prevents enforcement while the constitutionality of the statute is being litigated. According to the report:

[Judge] Cunningham said the danger of harm to women and doctors if the ban were allowed to take effect “could not be more crystal clear.”

“The court finds the statute dangerous and chilling to our state's population, childbearing people and the medical professionals that care for them”....

Other Michigan courts have already barred the state Attorney General's office from enforcing the pre-Roe statute. (See prior posting.) The court yesterday postponed any further hearings until after the November elections in which a proposed state constitutional amendment on abortion rights will likely be on the Michigan ballot.

Michigan Governor Gretchen Whitmer issued a statement (full text) welcoming the court's decision.

Court Lifts Pre-Dobbs Injunction Against Enforcement Of North Carolina Abortion Ban

 In Bryant v. Woodall, (MD NC, Aug 17, 2022), a North Carolina federal district court lifted an injunction it had entered in 2019 enjoining enforcement North Carolina statutes that prohibited pre-viability abortions. The court said in part:

None of the parties argue that the injunction remains legally enforceable, nor could they. The injunction was entered under the authority of Roe and Casey; that precedent has been overruled by Dobbs. Because the power to regulate abortion has been returned to the states, the parties’ suggestion that this court’s injunction is having an effect, whether preventing “confusion,”... or “preserv[ing] Plaintiffs’ ability to provide critical healthcare services,”... suggests the parties are improperly relying upon, and asserting, an injunction that is no longer lawful.

ADF issued a press release announcing the decision.

Preliminary Relief Denied In Challenge To Georgia Anti-Abortion Law

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Aug. 15, 2022), a Georgia state trial court refused to grant a preliminary injunction to prevent enforcement of Georgia's LIFE Act while its constitutionality is being litigated. The Act, with limited exceptions, bars abortions once a heartbeat is detectable. The court held that Georgia's constitutional provision that waives sovereign immunity for an injunction after the award of declaratory relief does not waive sovereign immunity for a preliminary injunction before declaratory relief has been granted. The Georgia ACLU issued a press release discussing the decision.

Louisiana Supreme Court Refuses Stay Of Abortion Ban During Appeals

In an Order (full text) signed by four of the seven Justices on the Louisiana Supreme Court in June Medical Services, LLC v. Landry, (LA Sup. Ct., Aug. 11, 2022), the court denied a petition by abortion providers seeking to reinstate a trial court's injunction on enforcing Louisiana's abortion ban while appeals are being pursued.  As explained by The Advocate, the trial court had found that the law was likely unconstitutionally vague.  A state appellate court ordered the trial court to suspend its ruling, and now the Supreme Court has refused to overturn that decision.

Idaho Supreme Court Refuses To Stop Effectiveness Of Abortion Bans

In Planned Parenthood Great Northwest v. State of Idaho,(ID Sup. Ct., Aug. 12, 2022), the Idaho Supreme Court, in a 3-2 decision, refused to issue a preliminary injunction to prevent enforcement while litigation is pending of a statute triggered by the overruling of Roe v. Wade imposing a near-total abortion ban, as well as of a six-week abortion ban. The court also vacated a preliminary stay it had previously issued barring enforcement of a law that creates civil liability in suits against persons performing abortions after a fetal heartbeat is detectable. Plaintiffs contend that the statutes violate various provisions of the Idaho constitution. The majority concluded that petitioners had not shown a substantial likelihood of success or violation of a clear legal right as to either of the statutes.

Justice Stegner, joined by Justice Zahn, dissented contending that it is sufficient that petitioners showed irreparable harm if a stay in not granted; they do not need to also show a likelihood of success. The dissent said in part:

The State and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made.

Fox News reports on the decision.

Indiana Governor Signs New Law Restricting Abortions

On Friday, Indiana Governor Eric Holcomb signed Senate Enrolled Act 1 (full text). Under the new law, Indiana's former ban on abortions after 20 weeks or viability (whichever is sooner) except for life or substantial health reasons is amended to allow abortions only when necessary to prevent a serious health risk to the pregnant woman or to save her life, or for 20 weeks when the fetus is diagnosed with a fatal abnormality. Abortions may be performed during the first 10 weeks of pregnancy when the result of rape or incest. Parental consent for abortion for a minor is not required in the case of rape or incest. The law does not apply to in vitro fertilizations. ABC News reports on the new law. [Post revised for accuracy.]

5th Circuit Hears Oral Arguments In Challenge To Former Health Care Non-Discrimination Rule

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Franciscan Alliance v. Becerra. In the case, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. (See prior posting.) As explained by Reuters report on the case:

The administration argues that the court order, which applies only to the Christian medical groups behind a 2016 lawsuit, is moot because the rule they originally challenged is no longer in effect.

Biden Issues Executive Order On Access To Reproductive Health Care Services

Yesterday, President Biden issued an Executive Order on Securing Access to Reproductive and Other Healthcare Services (full text). The White House also issued a Fact Sheet explaining the Executive Order.  The Executive Order reads in part:

There have been numerous reports of women denied health- and life-saving emergency care, as providers fearful of legal reprisal delay necessary treatment for patients until their conditions worsen to dangerous levels.  There are also reports of women of reproductive age being denied prescription medication at pharmacies — including medication that is used to treat stomach ulcers, lupus, arthritis, and cancer — due to concerns that these medications, some of which can be used in medication abortions, could be used to terminate a pregnancy.  Reportedly, a healthcare provider, citing a State law restricting abortion, even temporarily stopped providing emergency contraception.

As it remains the policy of my Administration to support women’s access to reproductive healthcare services, including their ability to travel to seek abortion care in States where it is legal, I am directing my Administration to take further action to protect access to reproductive healthcare services and to address the crisis facing women’s health and public health more broadly.

The Executive Order among other things directs the HHS Secretary to advance access to Medicaid coverage for patients traveling across state lines for medical care. It also directs the Secretary to promote compliance with non-discrimination laws in obtaining medical care.