Texas Court Issues TRO Permitting an Abortion; Texas AG Responds

 A Texas state trial court yesterday issued a Temporary Restraining Order prohibiting the Texas Attorney General and the state Medical Board from enforcing Texas' abortion ban against plaintiff physician and her staff for performing a D&E abortion for plaintiff Kate Cox who is carrying a fetus diagnosed with a chromosomal condition that will result in its death before birth or at most in a few days after birth. The court in Cox v. State of Texas, (TX Dist. Ct., Dec. 7, 2023), said in part:

The longer Ms. Cox stays pregnant, the greater the risks to her life. Ms. Cox has already been to three emergency rooms with severe cramping, diarrhea, and leaking unidentifiable fluid.... If she is forced to carry this pregnancy to term, she will likely need a third C-section ... [which would] make it less likely that Ms. Cox would be able to carry another child in the future.

Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas' abortion bans and laws permits an abortion in Ms. Cox's circumstances. Dr. Karsan, however, cannot risk liability under Texas's abortion bans and laws for providing Ms. Cox's abortion absent intervention from the Court confirming that doing so will not jeopardize Dr. Karsan's medical license, finances and personal liberty.

Responding to the decision, Texas Attorney General Ken Paxton said in a press release:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions.... and civil penalties of not less than $100,000 for each violation.... And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens.... Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

He also sent a letter (full text) to three hospitals-- which were not parties to the case-- warning that they may be liable for negligently credentialing the physician and failing to exercise appropriate medical judgment if they permit the abortion to be performed in their facility.  Austin-American Statesman reports on the decision.

UPDATE: On Dec. 8, the Texas Supreme Court administratively stayed the trial court's order while it considers the case on appeal.

Supreme Court Review Sought in Tennessee's Ban on Medical Treatment of Minors for Gender Dysphoria

 A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in L.W. v. Skrmetti, (Sup. Ct., filed 11/1/2023). In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) ACLU issued a press release  announcing its filing of the petition seeking review of the 6th Circuit's decision.

School Enjoined from Social Transitioning of Students Without Parental Consent

In T.F. v. Kettle Moraine School District, (WI Cir. Ct., Oct. 3, 2023), a Wisconsin state trial court enjoined a school district from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent. The court said in part:

This Court has before it what modern society deems a controversial issue – transgenderism involving minors within our schools. Clearly, the law on this issue is still developing across the country and remaining largely unsettled. However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well established case law in that regard is clear – Kettle Moraine can not. The School District abrogated the parental rights of B.F. and T.F. on how to medically treat A.F. when the district decided to socially affirm A.F. at school despite B.F. and T.F. requesting it does not. Through its policy of disregarding parental wishes on a medical or health related decision and with how fast questioning ones gender can arise, P.W. and S.W. are at real risk of being harmed by the current School District policy. 

The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents wishes is not permissible and violates fundamental parental rights.

The Freeman reports on the decision.

9th Circuit Stays Pending Appeal Feds' Partial Injunction Against Idaho Abortion Ban

In United States v. State of Idaho, (9th Cir., Sept. 28, 2023), the U.S. 9th Circuit Court of Appeals stayed, pending appeal, a district court's injunction barring enforcement of Idaho's abortion ban ("section 622") to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). (See prior posting.) The appeals court said in part:

The Legislature has made a strong showing that EMTALA does not preempt section 622. EMTALA does not require abortions, and even if it did in some circumstances, that requirement would not directly conflict with section 622. The federal government will not be injured by the stay of an order preliminarily enjoining enforcement of a state law that does not conflict with its own. Idaho, on the other hand, will be irreparably injured absent a stay because the preliminary injunction directly harms its sovereignty.

Politico reports on the decision. [Thanks to Scott Mange for the lead.]

6th Circuit Upholds TN and KY Laws Barring Gender Transition Treatment For Minors

 In L.W. v. Skrmetti, (6th Cir., Sept. 28, 2023), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, reversed preliminary injunctions issued by district courts in challenges to statutes in Tennessee and Kentucky prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state laws, saying in part:

No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

Judge White dissented, saying in part:

The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. I respectfully dissent.

Texas AG Sues Yelp for $1M for Mislabeling Pregnancy Resource Centers

Texas Attorney General Ken Paxton last week filed a civil lawsuit against Yelp contending that it violated the Texas Deceptive Trade Practices- Consumer Protection Act by posting a "consumer notice" on the Yelp listings of anti-abortion Crisis Pregnancy Centers. The complaint (full text) in State of Texas v. Yelp, Inc., (TX Dist. Ct., filed 9/28/2023), alleges in part:

Yelp has engaged in deceptive trade practices, including disparagement of the goods, services, or business of another by false or misleading representation of facts.... Specifically, Yelp posted a “consumer notice” on the Yelp business pages of every pregnancy resource center across the nation, misleadingly stating that these centers “typically provide limited medical services and may not have licensed medical professionals onsite.” That was false. Pregnancy resource centers provide significant care and counseling to pregnant women. And they commonly provide significant medical services, and have licensed medical professionals onsite....

In or around February 2023, after approximately six months of displaying false and misleading disclaimers on the business pages of pregnancy resource centers, Yelp finally removed the misleading disclaimer regarding the alleged lack of medical professionals and medical services onsite, replacing it with a new disclaimer that stated: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.”

In addition to injunctive relief, the suit asks for civil penalties, attorneys' fees, restitution and costs that total at least $1 million. Paxton's office issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim. 

First Liberty Institute issued a press release announcing the decision. 

Texas Supreme Court Allows Ban on Transgender Care for Minors to Go into Effect

The Texas Supreme Court yesterday in State of Texas v. Loe, (TX Sup. Ct., Aug. 31, 2023), issued an Order allowing SB 14 to go into effect.  The law prohibits treating minors for gender dysphoria with surgery, puberty blocker or hormones. According to an ACLU press release:

A Travis County District Court had granted a temporary injunction last week that blocked implementation of the ban, but the Texas Attorney General immediately appealed to the Texas Supreme Court, thereby staying the injunction. The Texas Supreme Court did not provide any written explanation for allowing the law to remain in effect.

West Virginia's Ban on Prescribing Mifepristone By Telemedicine Is Pre-Empted By FDA Rules

In GenBioPro, Inc. v. Sorsaia,, (D WV, Aug. 24, 2023), a West Virginia federal district court dismissed a challenge to West Virginia abortion restrictions that are no longer in effect. The restrictions will go back into effect only if provisions of the more recent Unborn Child Protection Act (UCPA) are held unconstitutional. The court held that neither federal statutes nor FDA rules pre-empt state restrictions on when abortions may be performed. However, the court refused to rule further on the UCPA provisions, saying in part:

[T]he Court has not found that the UCPA is unconstitutional. As none of these prior restrictions are currently in effect, this Court may not issue an advisory opinion as to the constitutionality of a law not presently operative.

The court also rejected arguments that state restrictions on the sale of mifepristone violate the Commerce Clause, saying in part:

[T]he Supreme Court and Courts of Appeals have repeatedly affirmed that morality-based product bans do not intrinsically offend the dormant Commerce Clause. 

However the court did find that West Virginia's ban on prescribing mifepristone by telemedicine, which is still in effect, is pre-empted by FDA rules allowing telemedicine prescriptions for the drug. The Hill reports on the decision.

Court Preliminarily Enjoins Georgia's Ban on Hormone Therapy for Transgender Minors

In Koe v. Noggle, (ND GA, Aug. 20, 2023), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's ban on hormone replacement therapy for treatment of gender dysphoria in minors. The court said in part:

... SB 140 is subject to intermediate scrutiny both because it classifies on the basis of natal sex ... Adams, and because it places a special burden on nonconformity with sex stereotypes....

First, the preliminary record evidence of the medical risks and benefits of hormone therapy shows that a broad ban on the treatment is not substantially likely to serve the state’s interest in protecting children.... 

... [I]t should be recalled that the question put to the Court is not what the correct course of treatment is for an adolescent with gender dysphoria. The question is whether Georgia has shown an “exceedingly persuasive justification” for the challenged legislative scheme—a scheme that prohibits clinicians and parents from determining the correct course of treatment on an individualized basis, and which does so in a sex-based manner in that it imposes this prohibition only when it comes to “hormone replacement therapy” as a treatment for gender dysphoric youth....

... Defendants’ position that the quality of the existing evidence supporting hormone therapy justifies a ban of that therapy is not persuasive.

The court's decision was handed down one day before the 11th Circuit Court of Appeals (which includes Georgia) issued an opinion vacating a preliminary injunction against Alabama's ban on hormone treatment for minors with gender dysphoria. (See prior posting.)  The Hill reports on the decision.

11th Circuit: No Constitutional Right to Treat Minors with Gender Transition Medications

 In Eknes-Tucker v. Governor of Alabama, (11th Cir., Aug. 21, 2023), the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria. The court said in part:

On review, we hold that the district court abused its discretion in issuing this preliminary injunction because it applied the wrong standard of scrutiny. The plaintiffs have not presented any authority that supports the existence of a constitutional right to “treat [one’s] children with transitioning medications subject to medically accepted standards.” Nor have they shown that section 4(a)(1)–(3) classifies on the basis of sex or any other protected characteristic. Accordingly, section 4(a)(1)–(3) is subject only to rational basis review. Because the district court erred by reviewing the statute under a heightened standard of scrutiny, its determination that the plaintiffs have established a substantial likelihood of success on the merits cannot stand.

Judge Brasher filed a concurring opinion, saying in part:

[E]ven if the statute did discriminate based on sex, I think it is likely to satisfy intermediate scrutiny. If Alabama’s statute involves a sex-based classification that triggers heightened scrutiny, it does so because it is otherwise impossible to regulate these drugs differently when they are prescribed as a treatment for gender dysphoria than when they are prescribed for other purposes. As long as the state has a substantial justification for regulating differently the use of puberty blockers and hormones for different purposes, then I think this law satisfies intermediate scrutiny.

AL.com reports on the decision.

5th Circuit Says FDA Improperly Reduced Abortion Pill Restrictions, But Prior Supreme Court Order Keeps FDA Rules In Effect During Appeals

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (5th Cir., Aug. 16, 2023), the U.S. 5th circuit Court of Appeals upheld the portions of a Texas federal district court's orders that stayed actions taken by the FDA in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. The 2016 action increased the gestational age when the drug can be used from 49 to 70 days. It also lightened certain other dosage and prescribing restrictions. In 2021, in connection with the Covid epidemic, the FDA removed the in-person prescribing requirement for mifepristone, allowing it to be sent by mail. The court found that doctors have standing to challenge these actions, among other things citing conscience injuries to objecting doctors.  Challenges to two other FDA actions on mifepristone were rejected on standing and statute of limitations grounds.

The court concluded that plaintiffs are likely to succeed on their Administrative Procedure Act challenges that the FDA's actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. This was the case as to the 2016 action because the FDA did not consider the cumulative effect of the changes it was proposing. They were likely to succeed on their challenge to the 2021 action because the FDA did not adequately study adverse event data.

However, as the court recognized, the U.S. Supreme Court has already ordered a stay of all the district court's orders until federal appeals are completed. Thus the 5th Circuit's action does not reinstate the district court's bans. 

Judge Ho concurred in part and dissented in part, saying tht he would also hold that the initial approval of mifepristone in 2000 should be set aside.

NPR reports on the decision.

Louisiana Legislature Overrides Veto of Gender Transition Ban for Minors

Yesterday the Louisiana legislature overrode Governor John Bel Edwards' veto of HB648, the Stop Harming Our Kids Act (full text). The law prohibits medical professionals from providing puberty blockers, hormonal treatments or surgery to treat gender dysphoria in minors. AP reports on the legislative override.

Michigan Legislature Bans Conversion Therapy-- 22nd State To Do So

The Michigan legislature yesterday gave final passage to HB 4616 (full text) and HB 4617 (full text), bills which together prohibit mental health professionals from engaging in conversion therapy with a minor. HB4617 contains an elaborate definition of "conversion therapy" which explicitly excludes, among other things, "counseling that provides acceptance, support, or understanding of an individual or facilitates an individual's coping, social support, or identity exploration and development ...  as long as the counseling does not seek to change an individual's sexual orientation or gender identity."  When signed by the Governor, Michigan will become the 22nd state (plus the District of Columbia) to ban conversion therapy for those under 18. M Live reports on the new legislation.

Nevada Governor Vetoes Medical-Aid-In-Dying Bill

On Monday, Nevada Governor Joe Lombardo vetoed (full text of veto message) S.B. 239 (full text) which would have authorized physicians and advanced practice registered nurses to prescribe medications which a patient certified to be terminally ill could self-administer to end his or her own life. The Governor said in part:

Fortunately, expansions in palliative care services and continued improvements in advanced pain management make the end-of-life provisions in SB 239 unnecessary.

KLAS News reports on the governor's action.

Texas Legislature Passes Law Banning Gender-Affirming Health Care for Individuals Under 18

Yesterday the Texas legislature gave final approval to SB 14 (full text) which prohibits the provision of gender transitioning or gender reassignment procedures to individuals under 18 years of age. The bill bars both surgeries and puberty suppression or blockers. The state medical board is required to revoke the license of any physician who violates the treatment ban. Texas Governor Greg Abbott is expected to sign the bill.  AP reports on the bill's passage.

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.

Suit Challenges California's Protection of Out-of-State Minors Seeking Gender-Affirming Health Care

Suit was filed yesterday in a California federal district court challenging the constitutionality of California Senate Bill 107 which protects out-of-staters obtaining gender transition services for a minor in California from the reach of laws in their home states that create civil or criminal liability for allowing a minor to receive such services. The complaint (full text) in Our Watch With Tim Thompson v. Bonta, (CD CA, filed 3/7/2023), claims that:

SB 107 will allow California doctors, via telehealth appointments, to prescribe cross-sex hormones to children in South Dakota or Utah, where gender-reassignment treatment is banned. 

... SB 107 also denies parents the right to access their child’s medical information. Section 1 of the bill mandates that doctors conceal a child's medical information from parents if it is related to "gender identity" drugs and procedures. S.B. 107 § 1. 

SB 107 amended California law to directly conflict with federal law by taking away other states’ rightful jurisdiction of children visiting California who seek – or claims to be seeking – puberty blockers, cross-sex hormones, irreversible gender reassignment surgery, etc. Section 4 of SB 107 updates the California Family Code to read: “[t]he presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care…is sufficient to meet the requirements” for California courts to exercise jurisdiction over a custody decision. S.B. 107 § 4. This ignores the proper and rightful jurisdiction of the child’s home state....

The suit alleges that the law violates constitutional rights of familial association as well as Article IV's full faith and credit clause. Advocates for Faith & Freedom issued a press release announcing the filing of the lawsuit.

South Dakota Passes Law Banning All Gender-Affirming Treatments For Minors

The South Dakota legislature last week gave final passage to House Bill 1080 (full text) which prohibits healthcare professionals from providing either drug, hormonal or surgical treatments to minors for the purpose of altering the appearance of the minor's sex or validating a minor's perception of their sex that is inconsistent with the biological indication of their gender. The bill specifically includes a ban on administering drugs that delay puberty for minors. Minors currently receiving drug or hormonal treatments for gender dysphoria must be weaned off their medication by Dec. 31, 2023.  According to CNN, Gov. Noem will sign the bill into law.

HHS Issues Notice of Proposed Rulemaking on Conscience Protections For Healthcare Providers

The U.S. Department of Health and Human Services released yesterday a Notice of Proposed Rulemaking (full text) titled Safeguarding the Rights of Conscience as Protected by Federal Statutes. In 2019, the Trump Administration HHS adopted final rules on protecting the conscience rights of health care providers. The rules were criticized as possibly imperiling care for persons seeking reproductive health care, weakening childhood vaccination efforts and potentially leading to discrimination against gay and transgender patients. (See prior posting.) Several courts enjoined enforcement of the 2019 rules. (See prior posting.) Yesterday's Notice of Proposed Rulemaking says in part:

The Department also proposes to retain, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections but eliminate others because they are redundant or confusing, because they undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care access, or because significant questions have been raised as to their legal authorization. Further, the Department seeks to determine what additional regulations, if any, are necessary to implement certain conscience protection laws. The Department is seeking public comment on the proposal to retain certain provisions of the 2019 Final Rule, including on any alternative approaches for ensuring compliance with the conscience protection laws....

The ACLU issued a press release calling the HHS Notice "an important first step toward repealing the most harmful aspects of this dangerous rule."