Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of September 21

Morgan Lewis

The most significant development regarding reproductive rights in the last week occurred in West Virginia, where the state legislature enacted a near-total ban on abortion. Other major events included the introduction of federal legislation prohibiting abortion after 15 weeks and an Ohio state court ruling that the Ohio Constitution protects the right to an abortion.

WEST VIRGINIA ENACTS NEW ABORTION LAW

West Virginia became the second state to pass a new abortion prohibition post-Dobb when the state legislature passed a near-total ban on abortion on September 13, 2022. The legislature had considered a similar measure in late July, but debate stalled over the scope of an exemption for cases of rape and incest. Legislative leaders reached a compromise on the language last week and the bill was quickly passed by large margins. The West Virginia governor signed it into law on September 16. The ban will take effect on December 15, 2022.

The x states that abortion may not be performed or induced, or attempted to be performed or induced, unless the embryo or fetus is nonviable, the pregnancy is ectopic, or abortion is necessary to avert serious risk of death or substantial life-threatening physical impairment of a major bodily function of the pregnant person in the reasonable medical judgment of a West Virginia licensed medical professional.

The bill further provides that abortion is permissible in the first 8 weeks of pregnancy for adults and the first 14 weeks for minors when pregnancy is the result of sexual assault or incest, provided certain reporting requirements are met.

Miscarriage, IVF services (including embryo selection procedures), and contraceptive devices, instruments, medicines, or drugs are explicitly carved out from the bill’s definition of abortion and are therefore not affected.

A person who knowingly and willfully performs or attempts an abortion in violation of West Virginia law is guilty of a felony and subject to 3 to 10 years’ imprisonment. The penalties do not apply to a pregnant person upon whom an abortion is performed. Licensed medical providers are also subject to disciplinary action, including loss of license.

Finally, the bill directs West Virginia’s healthcare board to amend its telehealth rules to prohibit telehealth practitioners from prescribing and/or dispensing abortifacients—any drug or chemical preparation that induces abortion—in West Virginia.

FEDERAL ABORTION PROHIBITION INTRODUCED

US Senator Lindsey Graham of South Carolina introduced legislation on September 13 that would prohibit abortion nationwide after 15 weeks of pregnancy. The bill contains exemptions for abortions that are necessary to save the life of a pregnant person, pregnancies that result from rape against an adult (provided certain counseling requirements are met), and pregnancies that result from rape or incest against a minor (provided certain reporting requirements are met). The bill would permit states to enact and enforce more restrictive laws.

Reaction to the bill was mixed among members of Congress and analysts give it little chance of passing.

OHIO STATE COURT TEMPORARILY ENJOINS ENFORCEMENT OF FETAL HEARTBEAT LAW

A judge on the Hamilton County Common Pleas Court in Ohio issued a temporary injunction against the enforcement of Ohio’s fetal heartbeat law on September 14. In granting the request, the court held that the Ohio Constitution protects the right to abortion even if the US Constitution does not. The injunction will remain in place for 14 days while the court considers a request for an injunction for the duration of the litigation.

The ruling stems from a September 2, 2022, lawsuit filed by the ACLU of Ohio and Planned Parenthood Federation. The defendants are expected to appeal the decision.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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