Three Recent Developments in Ongoing Court Battles Over Abortion Rights Waged at State and Federal Levels

The national legal battle continues in both state and federal courts across the country in the wake of the Dobbs decision. It has been nearly a year since the Supreme Court’s conservative majority overturned Roe v. Wade and allowed states to decide on the legality of abortion. Here are three of the most recent developments, each of which happened in the shadow of the more well-publicized U.S. Supreme Court’s stay of a Texas ruling that basically negated the legality of the FDA-approved abortion drug mifepristone, but all adding to the chaos and confusion surrounding women’s reproductive rights.

North Dakota Bans Nearly All Abortions

On April 24, North Dakota enacted a near-total abortion ban.  The law, SB2150, makes the performance of an abortion a felony except when abortion is necessary to prevent the pregnant woman’s death or serious health risk (purposefully excepting from the definition of serious health risk a claim or diagnosis that the woman will engage in conduct that will result in her death or in substantial physical impairment of a major bodily function, which presumably is meant to exclude claims or diagnoses of suicidality) and except during the first six weeks of gestational age if the pregnancy resulted from incest, rape, or sexual abuse. 

Judge Considers Enjoining Colorado Restrictions on Abortion Reversal Treatment

Colorado enacted S.B. 23-190 on April 14, which makes it a deceptive trade practice to market or disseminate advertisements indicating that the person provides abortions or emergency contraceptives when they do not provide such services.  In addition, the law states healthcare providers engage in unprofessional conduct and may be subject to discipline, for prescribing or administering abortion reversal medication, unless the state medical board, board of pharmacy, and board of nursing each have rules in place establishing that medication abortion reversal is a generally accepted standard of practice.  A health clinic sued on constitutional grounds, and seeks to enjoin enforcement of the law, arguing that the clinic and its providers could be retroactively targeted and subjected to fines or loss of licensure even if the Colorado Attorney General does not enforce the law until the boards have completed the rulemaking process.  A ruling from the court is expected this week.

Court Declines Republican-Led States’ Attempt to Join Mifepristone Suit

Earlier this month, a federal judge in Washington issued a preliminary injunction preventing the FDA from hindering the availability of mifepristone, medication abortion, in 17 states and the District of Columbia—each of which is a plaintiff in that case.  That ruling is discussed in more depth here.  Before that ruling issued, the Republican-led states of Idaho, Iowa, Montana, Nebraska, South Carolina, Texas, and Utah sought to intervene—to join the lawsuit—arguing the FDA’s elimination of the in-person dispensing requirement previously applicable to mifepristone was unlawful and prevents the states’ ability to enforce their own laws.  On April 24, the court rejected these arguments and declined to allow the Republican-led states to intervene in the case.  The court explained that the in-person dispensing requirement is not at issue in the case, and the case’s resolution would not reduce the states’ ability to regulate medication abortion above and beyond FDA requirements by state law.  Further, the court found that allowing the Republican-led states to participate would delay the matter.  As a result, the court denied the request.

As the issue of abortion continues to be litigated in the courts, we will continue to update our Dobbs Decision Resource Center.  In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.