House Bills, Georgia's Abortion Restrictions, and Privacy Concerns Post-Dobbs

House Bills Set to Protect Contraception and Marriage Rights

Two bills protecting an individual’s right to contraception and marriage reached the floor in the House of Representatives this week: the Right to Contraception Act (H.R. 8373), and the Respect for Marriage Act (H.R. 8404). Both bills were proposed in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. 

H.R. 8373 protects an individual’s ability to engage in contraception and acquire contraceptives, and protects the ability of health care providers to deliver contraceptives and related reproductive health information.  H.R. 8373 also provides a private cause of action for individuals adversely affected by a limitation that impermissibly restricts access to contraceptive-related care, as well as for health care providers, who may commence an action for relief on their own behalf and on behalf of their staff or patients who may be adversely affected by violations thereof.

The Respect for Marriage Act was also taken up this week and provides that, if a marriage was valid in the state where it was performed, such marriage would be recognized under federal law. Designed to protect both same-sex and interracial marriages from not being recognized in all states, H.R. 8404 would also repeal the 1996 Defense of Marriage Act (“DOMA”), which defined marriage as the union between one man and one woman. While DOMA was held unconstitutional in United States v. Windsor, Justice Thomas’s concurring opinion in Dobbs raised fears that Windsor could be revisited if DOMA were not formally repealed.

The Respect for Marriage Act passed in the House of Representatives on Tuesday, July 19, and the Right to Contraception Act passed on Thursday, July 21, and both will now head to the Senate. 

Injunction of Georgia’s “Heartbeat” Bill Vacated by the Eleventh Circuit in the Wake of Dobbs

In 2019, Georgia passed H.B. 481, entitled The Living Infants Fairness and Equality Act (“LIFE”), which prohibited abortions of any fetus with a detectable heartbeat absent narrowly construed exceptions, including in the case of rape or incest when an official police report has been filed alleging the offense of rape or incest, and if a physician determines, in reasonable medical judgment, that a medical emergency exists or that the pregnancy is medically futile. LIFE also amended the definition of “natural persons” to include the unborn. A federal district judge enjoined the law in Georgia, and state officials appealed the decision to the Eleventh Circuit Court of Appeals.  While the Eleventh Circuit stayed its review of that injunction pending Dobbs, it has now vacated the injunction and remanded the case to the district court with instructions to enter judgment in favor of the Georgia state officials.  Practically speaking, this allows Georgia state officials to begin to enforce LIFE.

Dobbs held the federal Constitution does not guarantee a substantive due process right to abortion, thereby undermining the basis for the District Court’s injunction. As a result, the Eleventh Circuit reasoned that the plaintiffs’ arguments challenging LIFE on those grounds were now unsupported. Plaintiffs had also argued that LIFE’s definition of “natural persons” was unconstitutionally vague and would produce a chilling effect on health care providers when providing medical care to their pregnant patients based on possible criminal penalties for providing routine obstetrical and gynecological care. But the Eleventh Circuit also rejected these arguments, holding that a person of “reasonable intelligence” could discern the “core meaning” of the Georgia provision, which is “to expand the definition of person to include unborn humans who are carried in the womb of their mother at any stage of development.”  Accordingly, the constitutional challenges to LIFE failed on both grounds, and LIFE is set to go into effect immediately.

Deceptive Practices of VPN Providers Targeted by Congressional Democrats Following the Dobbs Decision

In a letter to the Federal Trade Commission (“FTC”) on July 13, California Representative Anna Eshoo and Oregon Senator Ron Wyden raised concerns that individuals who use a Virtual Private Network (“VPN”) may not be as protected as they think from hackers, businesses, government agencies, and others, given the opacity of the VPN industry and a high prevalence of VPN providers engaging in deceptive advertising and data collection practices.  More specifically, the legislators requested the FTC to regulate VPN providers, whose current advertising practices make it impossible for individuals to know which VPN providers they can trust. Representative Eshoo and Senator Wyden quoted from studies suggesting that VPN providers overstate the protections they provide and store users’ data despite saying they do not, and finding that twelve of the sixteen VPN providers examined in the study actively misrepresent their products. These deceptive practices provide women using a VPN to seek an abortion or other reproductive healthcare services a false sense of security.  The FTC publicly stated on its blog on July 11 that it will “vigorously” enforce the law whenever it finds illegal conduct that exploits a user’s location, health, or other sensitive data.