Evolving Laws and Litigation Post–Dobbs: The State of Reproductive Rights as of August 10

Morgan Lewis

The legal landscape around access to abortion services continues to change rapidly in the wake of Dobbs v. Jackson Women’s Health Organization. While a number of states have begun implementing laws that were on the books and are now lawful post-Dobbs, Indiana became the first state to enact a new law restricting access to abortion services since the US Supreme Court decision. In addition, Georgia has begun to implement its law on fetal personhood, and state litigation continues over the enforcement of various abortion bans. This Insight provides updates as of August 10, 2022.

STATE LEGISLATION AND EXECUTIVE ACTIONS

Indiana Enacts New Abortion Law; Companies React

Indiana’s legislature approved a near-total ban on abortion on August 5, 2022. Governor Eric Holcomb signed the measure on August 6, 2022, and the law will go into effect on September 15, 2022.

The law makes all abortion prior to viability or 20 weeks postfertilization a criminal act except when necessary to prevent death or a serious risk of substantial and irreversible physical impairment of a major bodily function in the pregnant person, or if the fetus is diagnosed with a lethal fetal anomaly. Abortions in cases of rape or incest are permissible during the first 10 weeks postfertilization. The law allows the use of abortion medication in the cases described above only in the first eight weeks postfertilization and only when dispensed in person and takenin the presence of the prescribing physician. In vitro fertilization (IVF) services are explicitly excluded from coverage under the law.

The law exempts pregnant persons from all criminal penalties. It also exempts licensed physicians or other individuals who perform an abortion at the request of a pregnant person from charges of murder, feticide, and voluntary/involuntary manslaughter. However, the criminal penalty continues to apply to licensed physicians or others who perform unlawful abortions.

The law contains no explicit references to the coverage of abortion services under employer health plans or policies that support individuals who travel outside of Indiana to receive those services. It does prohibit qualified health plans offered under the Affordable Care Act and health maintenance organizations from covering abortions that are not permitted by the law.

A large Indiana employer released a statement shortly after passage of the law, saying it was concerned the law will hinder its ability to attract diverse business talent and could force the company to focus growth outside of Indiana in order to remain competitive.

Georgia Implements ‘Personhood’ Law

Georgia law now defines a “natural person” to include “unborn children” at any stage of development who are carried in the womb. The law was permitted to go into effect by a June 20, 2022, decision from the US Court of Appeals for the Eleventh Circuit.

The Georgia Department of Revenue released guidance on August 1, 2022, stating that, pursuant to the law and court decision, individuals in Georgia may claim unborn children with detectable heartbeats (roughly six weeks of gestation via ultrasound) as dependents for the 2022 tax year.

This is the first indication of how Georgia may apply the “personhood” definition to existing laws. It is still unclear whether Georgia will take the same approach to other laws, such as criminal laws against homicide, manslaughter, and assault and battery.

Nebraska Decides Against Special Session on Abortion

The governor of Nebraska intended to call a special session of Nebraska’s unicameral legislature to consider a proposal banning abortion at 12 weeks postfertilization. After canvassing the legislature, however, the governor abandoned the plan due to lack of support. According to a statement released by the governor’s office on August 8, 2022, only 30 state legislators approved of a special session, which was three short of the required number. Nebraska’s legislature will likely consider the legislation when it convenes for its regular session in 2023.

STATE LITIGATION

A state court in Kentucky lifted the temporary injunctions against the enforcement of Kentucky’s fetal heartbeat and trigger laws on August 1, 2022. A Michigan appellate judge also lifted the temporary injunction against the enforcement of Michigan’s pre-Roe criminal law on August 1, 2022, but the injunction was swiftly reimposed by a state circuit court judge on August 3, 2022.

Temporary injunctions continue to be in place against state laws in Idaho, Iowa, North Dakota, Texas (partial), West Virginia, and Wyoming.

FEDERAL ACTION

White House Issues Second Executive Order on Access to Reproductive Healthcare Services

President Joseph Biden signed the Executive Order on Securing Access to Reproductive and Other Healthcare Services on August 3. The order states that “it remains the policy of [the Biden-Harris administration] to support women’s access to reproductive healthcare services, including the ability to travel to seek abortion care in States where it is legal.”

It also highlights recent guidance from the secretary of the Department of Health and Human Services (HHS) related to nondiscrimination in healthcare services and the application of the Emergency Medical Treatment and Labor Act, and directs HHS to do the following:

  • Consider actions to advance access to reproductive healthcare services, including, to the extent permitted by federal law, through Medicaid for patients traveling across state lines for medical care.
  • Consider all appropriate actions to advance the understanding of and compliance with nondiscrimination laws that apply to healthcare providers, including by updating technical assistance, issuing additional guidance, taking action on complaints of discrimination, and convening healthcare providers to instruct them on their legal obligations.
  • Evaluate the adequacy of research, data collection, and data analysis and interpretation efforts measuring the effect of access to reproductive healthcare on maternal health outcomes and other health outcomes at HHS components.

The order was released as part of the first meeting of the Interagency Task Force on Reproductive Healthcare Access and followed the announcement that the Department of Justice was seeking to challenge portions of Idaho’s abortion law under the Emergency Medical Treatment and Labor Act.

The task force is co-chaired by the secretary of HHS and the director of the White House Gender Policy Council and is charged with coordinating the federal government’s efforts to protect access to reproductive health services. It has representatives from HHS and the Federal Communications Commission, Federal Trade Commission, Office of Management and Budget, Office of Personnel Management, and Departments of Defense, Education, Homeland Security, Justice, Labor, Treasury, Transportation, and Veterans Affairs.

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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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