Court Says HHS Used "Smurfing" To Avoid Review of Guidance To Pharmacies

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, July 12, 2023), a Texas federal district court refused to dismiss a challenge by the state of Texas and a pharmacy company to the Department of Health & Human Service's July 14, 2022, Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services.  Texas claims that the Guidance is an attempt to pre-empt Texas' abortion bans. Plaintiffs contend that the Guidance exceeds HHS's statutory authority and violates the Administrative Procedure Act. HHS alleges the plaintiffs lack standing. According to the court:

Plaintiffs’ standing in this case turns on the answer to a single question: does the Pharmacy Guidance require pharmacies to dispense drugs for abortion purposes? Defendants argue now that the Pharmacy Guidance only “addresses situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” What’s more, Defendants argue that “Texas cannot point to any language in the guidance that purports to require pharmacies to dispense drugs for abortion purposes.” Thus, in Defendants’ view, because the Pharmacy Guidance is not about abortion, it “does not conflict with, or purport to preempt, Texas laws that restrict abortion.” But that argument perfectly evidences agency smurfing—an executive branch breaking up a policy goal into silos, hoping to sever the threads that link the compartmentalized pieces to the executive’s goal....

This administration has, before and since Dobbs, openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates. This Court will not play along with such a breach of constitutional constraints.

Earlier in its opinion, the court set out at greater length its concern about "smurfing":

A recent trend among federal agencies appears to be borrowing a technique common among money launderers to avoid judicial review. The technique known as “smurfing” in the financial arena occurs when the launderer divides a large transaction—which might otherwise trigger a bank’s reporting requirements—into various smaller transactions to avoid detection....

Agency smurfing, similar to financial smurfing, occurs when the executive branch smurfs one policy goal into multiple, supposedly “unreviewable” and “unchallengeable” pieces. Consider an executive branch, who, immediately following a Supreme Court decision, seeks to achieve a policy goal contrary to the Court’s holding. The executive branch knows, however, that courts will likely view that policy goal as incompatible with the Supreme Court’s reasoning. In its efforts to avoid scrutiny, and eventual discovery of their true purpose, the executive branch breaks up the policy goal into separate, seemingly unrelated and innocent pieces—an executive order here, a press release and guidance there.

Mayo Pharmacy, a co-plaintiff, also alleged violation of its free exercise rights under RFRA. The court held that the case was brought in the wrong venue to assert that claim, and it transferred that claim to the District of North Dakota where venue lies. ADF issued a press release announcing the decision.

Iowa Passes Fetal Heartbeat Abortion Ban

In a one-day special legislative session on Tuesday, the Iowa legislature passed HF732 (full text), a ban on most abortions if a fetal heartbeat can be detected (usually after 6 weeks of pregnancy). The law has exceptions for medical emergencies, and for rape or incest if reported to law enforcement or health authorities. "Medical emergency" is defined in Iowa Code §146B.1 as where necessary to preserve the life of the pregnant woman or where the pregnancy poses a serious risk of substantial and irreversible impairment of a major bodily function. AP in its coverage of the bill reports that Governor Kim Reynolds, who called the special session of the legislature, says she will sign the bill on Friday. Earlier this year, the Iowa Supreme Court was evenly divided, thereby affirming a state trial court's holding that a previous fetal heartbeat law violates the Iowa constitution.

Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act.  In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

Court Strongly Criticizes Performance of Counsel for The Satanic Temple

In March 2021, The Satanic Temple and one of its members filed suit in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion. The complaint alleged that in light of the Satanic Temple's Satanic Abortion Ritual, the Texas requirement violated plaintiffs' free exercise, substantive due process and equal protection rights. (See prior posting.) After the U.S. Supreme Court's Dobbs decision, The Satanic Temple filed a Third Amended Complaint.  In The Satanic Temple, Inc. v. Young, (SD TX, July 3, 2023), the Texas district court then dismissed the suit for lack of standing and on sovereign immunity grounds.  The court added:

Without any supporting detail, Plaintiffs assert two causes of action under the First Amendment, one being a claim swirling together the Free Speech and Free Exercise Clauses, and the other pertaining to the Establishment Clause. Young argues that these claims are so inadequately pleaded as to deprive her of fair notice as to what exactly this suit is about in the wake of Dobbs....

The court also refused to grant plaintiffs leave to replead their claims.  In doing so, the court set out an unusually strong criticism of the performance of plaintiffs' counsel, saying in part:

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, [in one of those cases:]

He ... filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play.....

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se, as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.”...

And any repleading at this stage would manifest undue prejudice to a range of current and former Defendants who still have little clue as to the exact nature of the claims brought in this case. The Court is also of the firm belief that any further attempt at repleading would be futile, given that Attorney Kezhaya’s filings become more conclusory, reductive, and intemperate over time, in line with his performative and obstinate conduct to date.

Indiana Supreme Court Rejects Facial Challenge to State's Abortion Law

In Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., (IN Sup. Ct., June 30, 2023), the Indiana Supreme Court rejected a facial challenge under the Indiana Constitution to Indiana's 2022 abortion law. The law bans abortions except when necessary to save a woman’s life or to prevent a serious health risk, or during limited time periods when there is a lethal fetal anomaly or when the pregnancy results from rape or incest. Interpreting the broad language of Art. I, Sec, 1 of the Indiana Constitution, the court said in part: 

... Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions....

We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest—informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy. Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances....

In sum, our State’s history and traditions, as reflected in our Court’s precedents, indicate that the common understanding of Section 1 among those who framed and ratified it was that it generally left the General Assembly with broad legislative discretion to limit abortion....

Justice Slaughter filed an opinion concurring only in the judgment, saying in part:

For the first time in our state’s history, the Court holds that the Indiana Constitution protects a woman’s right to terminate her pregnancy. The Court’s unprecedented conclusion is both momentous and unnecessary on this record. The only issue before us is the propriety of the trial court’s preliminary injunction. That narrow issue can, and thus should, be resolved without reaching any of the constitutional questions upon which the Court opines gratuitously...

Justice Goff filed an opinion concurring in part and dissenting in part, saying in part:

To be sure, Senate Bill 1 itself recognizes a woman’s liberty interest, if only in part, by allowing time-limited exceptions for victims of rape and incest and pregnancies involving a lethal fetal anomaly. But by holding that the legislature retains the discretion “to prohibit abortions which are unnecessary to protect a woman’s life or health,” the Court puts these exceptions at risk, effectively inviting the legislature to repeal even the most basic protections to a woman’s liberty....

It seems to me that reproductive liberty is too personal and too important for the General Assembly to set at naught when weighed in the balance against the protection of fetal life.

Indy Star reports on the decision.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

 In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

2nd Circuit Rejects Challenge to Abortion Clinic Bubble Zone Law

In Vitagliano v. County of Westchester, (2d Cir., June 21, 2023), the U.S. 2nd Circuit Court of Appeals held that plaintiff, who the court describes as "an aspiring pro-life sidewalk counselor who wishes to approach women entering abortion clinics and engage them in peaceful conversation about abortion alternatives," has standing to challenge Westchester County's recently-enacted 8-foot "bubble-zone" law. The court concluded that plaintiff has standing.  She had demonstrated a credible threat of enforcement of the law against her. Plaintiff conceded that the bubble-zone law survived constitutional attack under existing Supreme Court precedent.  She brought suit hoping to convince the Supreme court to overrule its 2000 decision that upheld a similar law. The 2nd Circuit thus affirmed the district court's dismissal of the challenge to Westchester County's ordinance, opening the way for appellant to seek Supreme Court review. Becket has background on the case.

Iowa Supreme Court, 3-3, Affirms Invalidation Of Heartbeat Abortion Law

As previously reported, in 2019 an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution. The case was not appealed. However, in 2022 the state filed a motion to dissolve the injunction and revive the law. The trial court refused to do so, and that decision was appealed to the Iowa Supreme Court.  Now in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 16, 2023), the Iowa Supreme Court announced that it was evenly divided, 3-3, on the case (with one Justice recused), so that by operation of law the trial court's decision stands. However individual Justices filed opinions in the case. 

The newly decided case was made more complicated by a decision of the Iowa Supreme Court last year in which it rejected subjecting a different abortion regulation to strict scrutiny under the state Constitution, but did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. (See prior posting.)

Now in last week's decision on the fetal heartbeat law, Justice Waterman (joined by Chief Justice Christensen and Justice Mansfield ) wrote that they would not grant the discretionary writ of certiorari, thus refusing to review the trial court decision. He went on to indicate that even if review were granted, they would affirm the trial court, saying in part:

The law as of today has not changed in a way that removes the “constitutional defect” in the fetal heartbeat bill. The undue burden test remains the governing standard under the Iowa Constitution, and the State concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test. The State therefore has failed to establish that the district court acted illegally. There is no basis for certiorari relief.

Justice McDonald filed a separate opinion, joined by Justices McDermott and May, saying in part:

Because there was no controlling decision from this court..., the district court should have applied this court’s other controlling precedents to constitutional claims of this type. Under this court’s controlling precedents, where there is no fundamental right at issue, statutes are subject only to rational basis review.

Justice McDermott filed a separate opinion, joined by Justices McDonald and May, saying in part:

Last year, we were presented with an appeal challenging the constitutionality of a different statute regulating abortion, yet we failed to declare the constitutional standard that applied. This case again presented that same basic task. And for the second time in as many years, we’ve ducked it. It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us. We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case. 

Des Moines Register reports on reactions to the decision.

New York Sues Anti-Abortion Group That Physically Obstructs Clinics

New York Attorney General Letitia James announced last week that she has filed suit against the anti-abortion group Red Rose Rescue and various of its members seeking to enjoin them from physically interfering with persons seeking abortions or providing abortion services. The complaint (full text) in People of the State of New York v. Red Rose Rescue, (SD NY, filed 6/8/2023), alleges in part:

8. Red Rose Rescue is an anti-abortion group whose members conspire to illegally trespass into private medical facilities that perform abortions and shut down or physically obstruct the provision of all reproductive health services, refusing all requests to leave by staff and law enforcement. 

9. Criminal trespass at reproductive health facilities is not incidental to Red Rose Rescue members’ activism, but rather is the core mission of their group.

The complaint alleges violations of the federal Freedom of Access to Clinic Entrances Act and New York's Clinic Access Act. In addition to injunctive relief, the suit also seeks damages and civil penalties. Catholic News Agency reports on the lawsuit.

3rd Circuit Hears Oral Arguments In Abortion Clinic Buffer Zone Challenge

The U.S. 3rd Circuit Court of Appeals yesterday heard oral arguments in Reilly v. City of Harrisburg (audio of full oral arguments). In the case below (MD PA, March 28, 2022) (full text), the court dismissed a suit by anti-abortion sidewalk counselors to Harrisburg's ordinance creating a 20-foot buffer zone designed to exclude protesters around health-care facilities, including abortion clinics. Liberty Counsel issued a press release previewing its arguments for appellants in the case.

Religious Challenge to Indiana Abortion Restrictions Certified as Class Action

In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., June 6, 2023), an Indiana state trial court judge agreed to certify as a class action a suit challenging Indiana's statute restricting abortions.  In the case, the court has already granted a preliminary injunction to plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The court certified the class as:

All persons in Indiana whose religious beliefs direct them to obtain abortions in situations prohibited by Senate Enrolled Act No. 1(ss) who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion because of the Act.

Indiana Capital Chronicle reports on the decision.

Lawsuit Challenges Laws Restricting Abortion Clinic Sidewalk Counselors

Suit was filed yesterday in a Colorado federal district court challenging on free speech grounds a Colorado statute and a Denver ordinance that prohibit approaching a person within 8 feet of an abortion clinic or other health care facility "for the purpose of passing a leaflet or handbill to ..., or engaging in oral protest, education, or counseling with such other person." According to the complaint (full text) in Faustin v. Polis, (D CO, filed 6/1/2023):

Defendants’ ban on approaching women outside of abortion clinics to speak with them unquestionably discriminates based on the content—and even the viewpoint—of speech. On its face, the ban applies only to speech with a particular purpose and message: speech “for the purpose . . . of engaging in oral protest, education, or counseling.”... And it targets only that speech on one side of the abortion debate: speech “protest[ing] or counsel[ing] against” what Colorado euphemistically terms “certain medical procedures.”... Defendants’ ban is also content- and viewpoint-based due to the nature of its justification: protecting the “unwilling listener’s interest in avoiding unwanted communication” from pro-life speakers when seeking “access to a medical facility.”...

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Oklahoma Suprme Court Says 2 Anti-Abortion Laws Are Unconstitutional

In Oklahoma Call for Reproductive Justice v. State of Oklahoma, (OK Sup. Ct., May 31, 2023), the Oklahoma Supreme Court in a 6-3 decision held two recently enacted abortion bans unconstitutional under the state constitution.  In doing so, the court relied on its prior decision in Oklahoma Call for Reproductive Justice v. Drummond, (OK Sup. Ct., March 21, 2023)  which held that "a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman's physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman's life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy." In the most recent case, the court said in part:

S.B. 1503 prohibits abortions after detection of a fetal heartbeat except in case of medical emergency. S.B. 1503 states in relevant part: "Sections 3 and 4 of this act shall not apply if a physician believes a medical emergency exists that prevents compliance of this act." S.B. 1503, § 5(A). There is no definition of medical emergency. There is also no severability clause.

H.B. 4327 on the other hand is a total ban on all abortions unless the "abortion is necessary to save the life of a pregnant woman in a medical emergency" or the "pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement."... H.B. 4327 states that "'Medical emergency' means a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."...

Pursuant to this Court's decision in Oklahoma Call for Reproductive Justice v. Drummond ... we find these two statutes to also be unconstitutional....

The court concluded that the severability clause in HB 4327 was insufficient to save the statute. AP reports on the decision.

New Michigan Law Bars Employment Discrimination Because of Abortion

Yesterday, Michigan Governor Gretchen Whitmer signed SB147 (full text) which amends the Elliott-Larsen Civil Rights Act to bar discrimination because the individual has had an abortion. Bridge Michigan reports on the new law.

5th Circuit Hears Arguments on FDA Approval of Abortion Drug

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Alliance for Hippocratic Medicine v. Food & Drug Administration.  In the case, 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. (See prior posting.) Last month, the U.S. Supreme Court granted a stay of the district court's order that is to last until appeals to both the 5th Circuit and the Supreme Court have run their course. (See prior posting.)  CNN reports on yesterday's oral arguments.

North Carolina Legislature Overrides Veto of Abortion Law

 The North Carolina legislature last night voted to override Governor Roy Cooper's veto of Senate Bill 20 which imposes elaborate new restrictions on abortions in the state, summarized in this prior posting. 

Reuters reports on the legislature's action.

North Carolina Governor Vetoes New Abortion Restrictions

Yesterday, North Carolina Governor Roy Cooper vetoed (veto message) (press release) Senate Bill 20 (full text) which imposed numerous new restrictions on abortions.  According to the General Asembly Conference Committee's summary of the bill:

Part I of the Conference Committee Substitute to Senate Bill 20 would repeal and replace the current abortion law in North Carolina. Under the new law, abortion would be permitted through the first twelve weeks of pregnancy for any reason, through the twentieth week of pregnancy if the pregnancy resulted from rape or incest, through the twenty-fourth week of pregnancy if there is a life-limiting anomaly in the unborn child, and at any time if there is a medical emergency for the pregnant woman. Part I would also criminalize the provision or advertising of abortion-inducing drugs in certain circumstances, prohibit eugenic abortions, and establish informed consent and reporting requirements for abortion.

NPR reports on the governor's action, saying that now a veto override battle will take place in the legislature.

Montana Supreme Court: State Constitution Protects Abortion Care by Advance Practice Registered Nurses

In Weems v. State of Montana, (MT Sup. Ct., May 12, 2023), the Montana Supreme Court held that a 2005 Montana statute that bars Advance Practice Registered Nurses from delivering abortion care violates the Montana Constitution.  The court summarized its decision:

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk. The District Court correctly determined that no genuine dispute of material fact exists regarding the safety and efficacy of APRNs providing early abortion care. Accordingly, § 50-20-109(1)(a), MCA, is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice.

Law & Crime reports on the decision.

New British Law Creates 150 Meter Buffer Zone Around Abortion Clinics

 On May 2, Britain's Public Order Act 2023 gained Royal Assent. Section 9 of the Act (full text) creates a 150 meter safe access zone around any abortion clinic.The section provides in part:

It is an offence for a person who is within a safe access zone to do an act with the intent of, or reckless as to whether it has the effect of—

(a)influencing any person’s decision to access, provide or facilitate the provision of abortion services at an abortion clinic,

(b)obstructing or impeding any person accessing, providing, or facilitating the provision of abortion services at an abortion clinic, or

(c)causing harassment, alarm or distress to any person in connection with a decision to access, provide, or facilitate the provision of abortion services at an abortion clinic....

where the person mentioned in paragraph (a), (b) or (c) is within the safe access zone for the abortion clinic.

The Secretary of State must still promulgate the effective date of this section.  Law & Religion UK has more on the new law.

Montana Governor Signs 5 Abortion-Related Bills

On Wednesday, Montana Governor Greg Gianforte signed into law five bills recently passed by the Montana legislature which regulate abortion procedures or availability.  The Daily Montanan reports on the bills that will now become law. Here is its description of each bill:

Senate Bill 154 ... carves out an exception to abortion under the constitutional right to privacy. A legal review note for the bill said it was at odds with the state constitution, which [Senate Judiciary Chairman Sen. Kieth] Regier responded to in a rebuttal saying it was the state’s Supreme Court that decided that abortion was covered under the right to privacy, and not the constitution.

House Bill 303... provides protections for medical practitioners and facilities that object to participation in health care services based on conscience, defined as “ethical, moral, or religious beliefs or principles.”...

House Bill 575 ... bans abortions after 24 weeks with a definition for viability by that stage of development, and it requires medical practitioners to perform and keep record of an ultrasound. 

House Bill 625 ... is a resurrection of the ballot issue LR-131 that voters rejected last fall, which would have required doctors save any infant born alive after an abortion later in pregnancy.

House Bill 786 ... has the state create regulations for the “humane disposition” of dead infants and fetuses, and other regulations of maternal complications and deaths tied “directly or indirectly” to abortions.

Five additional abortion-related bills are close to being submitted to the Governor for his signature.