Episode Transcript
[00:00:00] Before we begin. This episode contains content that some listeners may find sensitive. Listener discretion is advised.
[00:00:31] This is the Access Pregnancy Post Roe Podcast and I am Mia Braun In May of 2021, Governor Greg Abbott of Texas signed Senate Bill 8, also known as the Texas Heartbeat Act.
[00:00:51] This Texas law banned abortions after approximately six weeks of pregnancy before many people know they are pregnant.
[00:01:00] It was unique in its enforcement mechanism, relying on private citizens to sue abortion providers or anyone who aids or abets an abortion, rather than relying on government enforcement. This meant that anyone, even someone with no direct connection to the abortion, could file a lawsuit.
[00:01:24] Because the law was enforced by private citizens, there were no state officials directly responsible for its enforcement. This was a key point. Normally when challenging a law, you sue the government officials responsible for enforcing it. Because there were no state officials to sue, it was difficult to file a pre enforcement challenge a lawsuit to stop the law before it takes effect.
[00:01:52] Courts typically require a clear defendant with the authority to enforce the law.
[00:01:58] This enforcement method was designed to make it very difficult to sue the state and thus stop the law.
[00:02:07] This new law was expected to take effect as of September of 2021, but prior to its effect, legal challenges began Whole Women's Health versus Jackson is a Texas court case that challenged the constitutionality of Texas Senate Bill 8.
[00:02:28] Whole Women's Health, an abortion provider, and other plaintiffs challenged the law, arguing that it violated the constitutional right to abortion established by Roe v. Wade and Planned Parenthood v. Casey.
[00:02:44] The case involved complex legal questions about state sovereignty, federal court jurisdiction, and the ability of states to delegate enforcement of laws to private citizens. The case reached the U.S. supreme Court, which considered whether to block the law.
[00:03:05] The Supreme Court did not block the law, citing procedural issues related to the law's unique enforcement mechanism.
[00:03:14] This created a legal hurdle because it was difficult to identify a specific government official to sue in order to block the law.
[00:03:24] The Court stated that due to this unique enforcement method, there was not proper defendants to sue therefore, they could not block the law.
[00:03:36] Senate Bill 8 had a significant impact on abortion access in Texas, leading to a substantial decrease in the number of abortions performed in the state.
[00:03:49] It also set a precedent for other states to enact similar abortion restrictions.
[00:03:55] This law and its enforcement mechanism was a major step in the legal battles that led to the Dobbs decision in 2022.
[00:04:07] While Whole Women's Health vs Jackson didn't directly overturn Roe v. Wade, it played a significant role in setting the stage for that outcome because it demonstrated that the Court was open to allowing states to enact abortion restrictions that were previously considered abortion unconstitutional.
[00:04:32] According to the ACLU, since Roe v. Wade was overturned in 2022, 1,336 abortion restrictions have been put into effect.
[00:04:45] Following the overturning of Roe v. Wade, there has been a surge of legal challenges to state level abortion bans.
[00:04:54] In this episode, we will introduce some of the lawsuits that have been filed and ruled upon since 2022.
[00:05:03] There are several different types of lawsuits that have been filed against states with abortion bans. One type of lawsuit is challenging abortion bans based on state constitutions.
[00:05:16] Many laws argue that state abortion bans violate protections enshrined in state constitutions such as rights to privacy.
[00:05:26] State constitutions protect a right to privacy that encompass reproductive decisions.
[00:05:33] Another type of lawsuit is one that argues the equal protection of individuals. Abortion bans discriminate against women, therefore violate equal protection clauses. These lawsuits seek to establish that state state level protections for reproductive rights exist independently of federal law.
[00:05:57] Another type of lawsuit is challenging abortion bans based on religious freedom. Some lawsuits argue that abortion bans violate religious freedom protections, particularly when the bans conflict with the religious beliefs of those seeking or providing abortions.
[00:06:16] It is argued that abortion bans infringe on the religious freedom of individuals and health care providers.
[00:06:24] These cases often invoke state level religious freedom restoration acts.
[00:06:33] Some lawsuits are challenging abortion bans based on medical necessity.
[00:06:38] Lawsuits have also been filed arguing that abortion bans endanger the health of pregnant individuals, particularly in cases of medical emergencies.
[00:06:49] These cases often focus on the vagueness or inadequacy of medical exceptions. Within the bands there are legal challenges that argue that certain state laws are preempted by federal law. For example, some argue that the FDA regulations on abortion medications should should override state level restrictions.
[00:07:15] Some cases are being brought forward stating that the laws are too vague to be properly enforced.
[00:07:23] These lawsuits are occurring in numerous states with abortion bans with varying degrees of success.
[00:07:31] States where legal battles are particularly active include Arizona, Kentucky, South Carolina, Indiana and Ohio.
[00:07:43] The first lawsuit we will discuss is a lawsuit filed by St. Luke's Health System against Idaho's abortion ban. This lawsuit centers on a critical conflict between state law and federal requirements for emergency medical care.
[00:08:01] St. Luke's argues that Idaho's need near total abortion ban puts their physicians in an indefensible position.
[00:08:10] They are caught between state laws that restrict abortion and the Federal Emergency Medical Treatment and Labor act emtala, which mandates that hospitals provide stabilizing emergency medical care.
[00:08:27] EMTALA requires hospitals that receive Medicare funding to provide necessary emergency medical care even when the only treatment to stabilize a woman's condition is to terminate a pregnancy.
[00:08:44] St. Luke's contends that Idaho law doesn't adequately allow for this, particularly when a patient's health is in jeopardy, but not necessarily at the immediate risk of death, Dr. Jim Souza, chief physical executive at St. Luke's said in a statement. Our physicians are dedicated to helping families bring children into the world with safe, evidence based care. Yet the conflict between Idaho's Defense of Life act and EMTALA makes it impossible to provide the highest standard of care in some of the most heartbreaking situations.
[00:09:28] The health system's legal action is also driven by concerns that federal protections under EMTALA could be weakened or withdrawn under a potential change in presidential administration.
[00:09:43] They are seeking to ensure that these protections remain in place, allowing their physicians to provide necessary emergency care with without fear of prosecution.
[00:09:54] St. Luke's emphasizes that the conflict between state and federal law directly impacts patient care, particularly in emergencies involving pregnant patients. They highlight instances where patients have had to be transferred to other states to receive necessary care due to the limitations imposed by the Idaho ban.
[00:10:20] The lawsuit challenges the Idaho law because it is preempted by federal law emtala, which means when federal and state laws conflict, the federal law usually wins. They are seeking a court ruling that clarifies that EM TALA takes precedence in emergency medical situations.
[00:10:44] In essence, St. Luke's lawsuit is about protecting the ability of their physicians to provide life saving emergency medical care to pregnant patients, even when that care involves terminating a pregnancy.
[00:11:00] Recent reports indicate that the current administration DOJ is dismissing its lawsuit against Idaho, even with the DOJ withdrawing the case. St. Luke's Health System intends to continue its legal challenge and has taken action to ensure that legal protections for doctors providing emergency abortions remain in place regardless of the DOJ's withdrawal.
[00:11:31] Another case we wanted to highlight was the cases of Danko Laboratories LLC v. Alliance for Hippocratic Medicine and US FDA vs. Alliance for Hippocratic Medicine in Texas.
[00:11:46] These lawsuits both revolve around the legal challenges to the Food and Drug Administration's approval and subsequent regulation of mufapristone, a medication used in medication abortions.
[00:12:02] The alliance for Hippocratic Medicine, an anti abortion group, challenged the FDA's initial approval of mufapristone in the year 2000.
[00:12:12] They argued that the FDA's approval process was flawed and that the drug poses safety risks.
[00:12:20] The alliance also challenged subsequent FDA actions that expanded access to muffapristone, such as allowing its use up to 10 weeks of pregnancy, permitting the dispensing of the medication by mail and allowing non physicians to prescribe it.
[00:12:41] A significant part of the legal debate centered on whether the alliance for Hippocratic Medicine had legal standing to challenge the FDA's actions.
[00:12:52] This means whether they had suffered a direct injury that gave them the right to sue.
[00:12:58] There were also arguments made that the FDA's actions would cause an increase in women needing emergency care and thus impact doctors and hospitals.
[00:13:10] The case reached the Supreme Court after a federal district judge in Texas attempted to remove muffapristone from the Market and the Fifth Circuit Court of Appeals imposed severe nationwide restrictions.
[00:13:25] The U.S. supreme Court ruled that the alliance for Hippocratic Medicine did not have standing to bring the case forward, meaning they did not have the right to sue. This allowed for the FDA rules to remain in place.
[00:13:41] After the Supreme Court took the case, the federal judge in Texas, Matthew Kizmarick, granted a request by Idaho, Missouri and Kansas to join the case as plaintiffs.
[00:13:54] These states have indicated that they will try to continue to litigate this case, stepping into the anti abortion doctor's shoes in an ongoing attempt to attack access to medication abortion nationwide.
[00:14:10] Director of the ACLU Reproductive Freedom Project, Jennifer Delvin stated, we are relieved the Supreme Court didn't take this bait, but unfortunately we know that this is far from the end of the line.
[00:14:25] Although the Court refused to allow these particular people to bring the case, anti abortion politicians are waiting in the wings to attempt to continue pushing this case before an extremist judge in Texas to deny people access to medication abortion care.
[00:14:45] These cases show the extreme lengths politicians will go to prevent people from getting the reproductive health care they need.
[00:14:56] Planned Parenthood Southwest Ohio Region vs Ohio Department of Health is a legal case concerning abortion access in Ohio. This case primarily involves challenges to various Ohio state laws that restrict abortion access.
[00:15:15] These laws have included regulations on abortion providers, restrictions on medical abortion, heartbeat pills that ban abortions after a fetal heartbeat is detected around six weeks of pregnancy, and laws regarding mandatory waiting periods and counseling.
[00:15:36] Planned Parenthood and other plaintiffs argue that these laws violate the constitutional right to abortion, particularly as it was established under Roe v. Wade before it was overturned and the subsequent court decisions. They also argue that these laws create undue burdens on women seeking abortions, particularly in terms of access and affordability.
[00:16:03] They also argue that some of the laws are medically unnecessary.
[00:16:09] The Ohio Department of Health defends the state's abortion laws, arguing that they are within the state's authority to regulate medical procedures. They often cite the state's interest in protecting fetal life and maternal health.
[00:16:27] This case has involved numerous legal challenges and court decisions at both the state and federal levels.
[00:16:36] The legal landscape has been significantly impacted by the US Supreme Court's decision in Dobbs vs Jackson Women's Health Organization, which overturned Roe v. Wade.
[00:16:50] Since the Dobbs decision, the legal battles have shifted to interpreting Ohio state laws and constitutions.
[00:16:59] There have been many injunctions and stays that have caused the laws to change rapidly.
[00:17:05] This case has had a direct impact on abortion access in Ohio, with the outcomes of court decisions determining the availability of abortion services in the state.
[00:17:18] The legal battles in Ohio reflect the broader national debate over abortion rights.
[00:17:27] These cases are part of a broader legal battle over access to abortion in the United States.
[00:17:35] The cases involve complex questions about the FDA's regulatory authority and the role of the courts in reviewing agency decisions. They raise fundamental questions about the balance of power between states, state, and federal governments. Particularly with health care and reproductive rights.
[00:17:57] The ongoing legal challenges create a climate of uncertainty. With constantly shifting laws and regulations, this makes it difficult for health care providers and patients to navigate the legal landscape.
[00:18:16] These lawsuits bring much public awareness to the issues surrounding abortion and reproductive rights.
[00:18:24] The legal battles over abortion bans further polarize the political landscape with significant implications for elections and legislative action.
[00:18:37] The outcomes of these lawsuits will set important legal precedents that will shape the future of reproductive rights in the U.S.
[00:18:48] in essence, the interplay between abortion bans and the lawsuits challenging them is shaping the future of reproductive rights in the US with profound implications for individuals, health care, and society as a whole.
[00:19:09] To stay up to date on the latest developments, it's recommended to follow resources like the aclu, the American Civil Liberties Union, the Guttmacher Institute, the Kaiser Family foundation, and the Brennan center for Justice.
[00:19:27] Over the next few weeks, we will look at some of the women who have been impacted by abortion bans in their state. We will tell their stories and explain how they are fighting back.
