Showing posts with label Abortion. Show all posts
Showing posts with label Abortion. Show all posts

Tuesday, March 26, 2024

Supreme Court Hears Oral ArgumentsToday On Abortion Pill Restrictions

 The U.S. Supreme Court is hearing oral arguments today in two related cases-- FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine.  At issue is the FDA's actions in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. (See prior posting.) Links to briefs and pleadings in the cases can be found on the SCOTUSblog case pages (Danco, Alliance).  Live audio broadcast of the arguments beginning at 10:00 AM EDT can be accessed here. SCOTUS blog has further background on the issues being argued today. This posting will be updated to link to the transcript and recording of the arguments when they become available later today.

UPDATE: Here is a link to the transcript and audio of this morning's oral arguments. NBC News reports on the oral arguments.

Wednesday, March 20, 2024

Montana Supreme Court Says AG Wrongly Rejected Language of Reproductive Rights Initiative

In Montanans Securing Reproductive Rights v. Knudson,(MT Sup. Ct., March 18, 2024), the Montana Supreme Court held that the state Attorney General was incorrect in in concluding that a proposed reproductive rights ballot initiative violates the separate vote requirement of the Montana Constitution. It also held that the Attorney General lacked authority to append a fiscal statement to the initiative. The court ordered the Attorney General to prepare a ballot statement for the initiative and forward it to the Secretary of State. 

Justice McKinnon filed a concurring opinion. Justice Rice filed a dissenting opinion, saying in part:

I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion this review is designed to prevent.

(See prior related posting.) Montana Free Press reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Tuesday, March 19, 2024

Catholic Bishops Mobilize Special Prayer Efforts for Supreme Court's Decision on Abortion Pill Availability

On March 26, the U.S. Supreme Court will hear oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine and a companion case Danco Laboratories, LLC v. Alliance for Hippocratic Medicine. (SCOTUSblog case page.) At issue are challenges to the Food and Drug Administration's relaxation of restrictions on the administration and use of the abortion drug mifepristone. (See prior posting.) On March 14, the U.S. Conference of Catholic Bishops issued a letter (full text) calling for the recitation of a special prayer beginning the day before oral arguments and daily until the date in June when the case is decided.  The letter reads in part:

The USCCB Committee on Pro-Life Activities is inviting Catholics to join a focused effort of prayer for the end of abortion and the protection of women and preborn children, beginning on March 25, the eve of the oral arguments, and the anniversary of St. John Paul II’s landmark, pro-life encyclical, The Gospel of Life (Evangelium vitae). In particular, we will invoke the intercession of St. Joseph, Defender of Life....

The Tablet and Catholic World Report both report on the Bishops' Nationwide Invitation to Prayer.

Tuesday, March 05, 2024

France Adds Abortion Rights to Its Constitution

 As reported by AP, France's Parliament yesterday gave final approval to a Constitutional amendment that guarantees abortion rights:

The measure was approved in a 780-72 vote in the Palace of Versailles. Abortion enjoys wide support in France across most of the political spectrum, and has been legal since 1975....

Both houses of France’s parliament, the National Assembly and Senate, had separately adopted a bill to amend Article 34 of the French Constitution, but the amendment needed final confirmation by a three-fifths majority in the special joint session. The measure specifies that “the law determines the conditions by which is exercised the freedom of women to have recourse to an abortion, which is guaranteed.”...

The government argued in its introduction to the bill that the right to abortion is threatened in the United States, where the Supreme Court in 2022 overturned a 50-year-old ruling that used to guarantee it....

Friday, February 23, 2024

State Constitutional Challenge to Abortion Restrictions Filed in Wisconsin Supreme Court

Last year in Kaul v. Urmanski, (WI Cir. Ct., Dec. 5, 2023), a Wisconsin state trial court held that Wisconsin Statute §940.04 which prohibits destroying the life of an unborn child applies only to feticide, and not to consensual abortions. That case is now on appeal to the Wisconsin Supreme Court. Yesterday, Planned Parenthood filed a petition with the Wisconsin Supreme Court asking it to take original jurisdiction over a state constitutional challenge to §940.04. It contends that the Court should decide the constitutional question before it engages in the statutory interpretation issue presented in the Kaul case. The petition (full text) in Planned Parenthood of Wisconsin v. Linton, (WI Sup.Ct., filed 2/22/2024), contends that Wisconsin Statute §940.04, if interpreted to ban abortions in all cases except to save the life of the mother, violates Art. I, Sec. 1 of the Wisconsin Constitution. The Petition asserts that the abortion ban (enacted in the mid 19th century) violates the right to bodily integrity, autonomy and self-determination; the physician's and the patient's right to equal protection, and the physician's right to practice his or her profession. Courthouse News Service reports on Planned Parenthood's petition.

Tuesday, February 06, 2024

Satanic Temple Loses Challenge to Idaho Abortion Bans

In The Satanic Temple v. Labrador, (D ID, Jan. 31, 2024), an Idaho federal district court dismissed several challenges to Idaho's statutes criminalizing abortion filed by The Satanic Temple which has created its own Abortion Ritual.  The court describes plaintiff's claims:

The Satanic Temple (“TST”) filed the instant case arguing Defendants actions have: (1) effected a regulatory taking of the economic value of a pregnant woman’s womb in violation of the Fifth Amendment; (2) effectively made pregnant women into slaves in violation of the Thirteenth Amendment; (3) given unconstitutional preferences to rape victims in violation of the Fourteenth Amendment; and (4) violated Idaho’s religious freedom statutes.

After finding that TST lacks standing to bring the suit, the court goes on to also reject TST's first three claims on the merits and concludes that TST, which asked to file an amended complaint to substitute a free exercise claim for its claim under Idaho's Exercise of Religious Freedom Act, should do this by fining a new lawsuit rather than an amended complaint.

Idaho Attorney General Labrador issued a press release announcing the decision which he titled "Attorney General Labrador Defeats Satan." LifeNews reporting on the decision said that lawyers for TST plan an appeal to the 9th Circuit.

Monday, January 29, 2024

Pennsylvania Supreme Court Casts Doubt on Abortion Exclusion From State Medicaid Coverage

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, (PA Sup. Ct., Jan. 29, 2024) [Majority Opinion], the Pennsylvania Supreme Court remanded to the trial court for strict scrutiny review a challenge to the constitutionality of Pennsylvania's ban on the use of state Medicaid funds for abortion services (except in the case of rape, incest or threat to the life of the mother). Six of the Court's 7 Justices participated in the case.  Justice Donohue's opinion (joined by Justice Wecht) sets out the conclusions of a majority of the Justices in a 219-page opinion. The majority overruled its 1985 decision in Fischer v. Department of Public Welfare that had upheld the ban.  The majority concluded that that pregnancy-related distinctions may violate the state Constitution's Equal Rights Amendment (Art. I, Sec. 28), saying in part:

... [T]he Fischer Court ignored that reproductive functions, by definition, have historically been the primary basis for the distinction between men and women, i.e., physical characteristics that make one a member of the sex. The text of Section 28 does not support the exception created by Fischer that equality of rights can be denied or abridged based on a physical characteristic that makes a person a member of the male or female sex....

 ... [W]e overrule Fischer’s interpretation of the Equal Rights Amendment. We further conclude that when a statute is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.

The majority also overruled Fischer's holding that the state Constitution's equal protection provision (Art. I, Sec. 26) does not prevent the state from conferring a benefit unequally.  The majority said in part:

... [A] court, presented with a challenge to a legislative classification that touches on the exercise of a civil right on the basis that it violates Article I, Section 26, must determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

Writing only for himself and Justice Wecht, Justice Donohue also contended that that the state Constitution substantively protects a woman's right to make reproductive decisions, including abortion.

Justice Wecht also filed a 71-page concurring opinion discussing additional issues. Chief Justice Todd filed a 17-page opinion dissenting in part, concluding that the Fischer decision is binding precedent. Justice Dougherty filed a brief opinion concurring in part, agreeing with the majority's overruling of Fischer. Justice Mundy filed a 24-page opinion dissenting in part, concluding that the funding ban should be upheld on the basis of the Fischer case and strongly criticizing the majority's holding that Art. I, Section 26 requires funding neutrality.

Philadelphia Inquirer reports on the decision.

Thursday, January 25, 2024

Arkansas AG Certifies Abortion Amendment Proposal; Signature Collection May Begin

After rejecting two prior proposals as being unclear or misleading (1 , 2 ) on Tuesday, Arkansas Attorney General Tim Griffin certified the popular name and ballot title for a proposed constitutional amendment that, if adopted by voters, will liberalize abortion rules in Arkansas.  The ballot proposal describes the changes as follows in part:

... [T]his amendment changes Arkansas law by amending the Arkansas Constitution to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services (1) in cases of rape, (2) in cases of incest, (3) in the event of a fatal fetal anomaly, or (4) when, in a physician’s good-faith medical judgment, abortion services are needed to protect a pregnant female’s life or to protect a pregnant female from a physical disorder, physical illness, or physical injury; to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services within 18 weeks of fertilization....

As reported by the Arkansas Democrat Gazette, the Attorney General's approval allows proponents to begin to collect 90,704 signatures needed to get the proposal on the November 2024 ballot.

Wednesday, January 24, 2024

White House Fact Sheet Focuses on Administration's Protection of Access to Reproductive Health Care

On Monday, which was the 51st anniversary of the Supreme Court's decision in Roe v. Wade, the White House issued a Fact Sheet (full text) announcing new actions to protect access to reproductive health care. According to the Whtie House, these include:

The Departments of the Treasury, Labor, and Health and Human Services (HHS) are issuing new guidance to clarify standards and support expanded coverage of a broader range of FDA-approved contraceptives at no cost under the Affordable Care Act....

The Secretary of HHS is issuing a letter to private health insurers, state Medicaid and Children’s Health Insurance Programs, and Medicare plans about their obligations to cover contraception for those they serve....

... The Administration is committed to helping ensure all patients, including women who are experiencing pregnancy loss and other pregnancy-related emergencies, have access to emergency medical care required under the Emergency Medical Treatment and Labor Act (EMTALA). The Administration has long taken the position that the required emergency care can, in some circumstances, include abortion care. The Department of Justice (DOJ) is defending that interpretation of the law before the Supreme Court, which is expected to rule by June. 

To increase awareness of EMTALA and improve the procedures for ensuring that patients facing all types of medical emergencies receive the care to which they are entitled, HHS is announcing today a comprehensive plan to educate all patients about their rights and to help ensure hospitals meet their obligations under federal law....

The Fact Sheet went on to outline at length steps the Administration has taken to protect access to abortion, including medication abortion, and to contraception. The Fact Sheet comes as the White House is convening the fourth meeting of its Task Force on Reproductive Health Care.

Tuesday, January 23, 2024

Montana AG Says Abortion Rights Initiative Cannot Go on Ballot

In a Memorandum dated January 16, Montana's Attorney General has ruled that proponents of an abortion rights amendment to the Montana Constitution may not begin to collect signatures to get the proposal on the ballot because the proposal is legally insufficient. (Full text of AG's ruling.) Montana's Supreme Court in Armstrong v. State (1999) has previously held that the state Constitution's privacy provisions protect the right to pre-viability abortion. The proposed Amendment as summarized by the Secretary of State would explicitly protect that right, would assure the right to abortion even post-viability when necessary to protect the pregnant person's life or health, and would prohibit the state from taking adverse action against patients, healthcare providers or anyone assisting someone in obtaining reproductive care. The Attorney General's Memorandum concludes that the proposed Amendment "logrolls multiple distinct political choices into a single initiative," in violation of the separate-vote provision of the state Constitution. Montana Free Press reporting on the Attorney General's action, says that Amendment proponents plan to challenge the Attorney General's action in court. [Thanks to Thomas Rutledge for the lead.]

Monday, January 22, 2024

Sign Ordinance Restricting Anti-Abortion Protester Does Not Violate 1st Amendment

In Roswell v. Mayor and City Council of Baltimore, (D MD, Jan.19, 2024), a Maryland federal district court dismissed a suit by an anti-abortion sidewalk counselor who communicates with women entering and exiting a Planned Parenthood Clinic. A city ordinance prevented plaintiff from using A-frame signs in front of the clinic to communicate his religious convictions about abortions as well as information about alternatives to abortion. A permit to erect such signs can be obtained only by the owner of the property or an agent of the owner. Finding that the city ordinance did not violate plaintiff's free speech rights, the court said in part:

Plaintiff asks this Court to find that zoning ordinances cannot distinguish between the owners and tenants of adjacent properties utilizing A-frame signs for non-residential uses and those with no such property interest without running afoul of First Amendment principles. Fatal to Roswell’s position is the simple fact that the regulations do not “target speech based on its communicative content.” ...

The court also rejected plaintiff's free exercise of religion challenge, saying in part: 

Here, the challenged ordinances are unconcerned with religious exercise. They neither prohibit nor compel religious conduct. And even if the ordinances did burden religious exercise, a law that “incidentally burden[s] religion” does not violate the Free Exercise Clause if it is “neutral and generally applicable.”

Wednesday, January 10, 2024

HHS Adopts Rules Implementing Conscience Protections in Federal Law

The Department of Health and Human Services has made available a 100-page Release (full text) titled Safeguarding the Rights of Conscience as Protected by Federal Statutes that will be published in the Federal Register on January 11. The Release adopts the final version of amendments to rules initially adopted in 2011 and amended in 2019. though the 2019 version never took effect because of litigation. (See prior posting.) The new Rules seek to implement conscience protections in various statutes that bar recipients of federal funds from requiring health care personnel and organizations to participate in conduct that violates their religious or moral beliefs.  The new Rules provide in part:

OCR considers the posting of a notice consistent with this part as a best practice towards achieving compliance with and educating the public about the Federal health care conscience protection statutes, and encourages all entities subject to the Federal health care conscience protection statutes to post the model notice provided in Appendix A to this part. OCR will consider posting a notice as a factor in any investigation or compliance review under this rule.

(See prior related posting.) 

In a Release (full text) criticizing the new Rule, Alliance Defending Freedom said in part:

In its rule, HHS suggests it will continue its misguided use of the Emergency Medical Treatment and Labor Act to require doctors to perform abortions even though that federal law has no abortion requirement, and conscience laws provide no exception allowing forced performance of abortion.

In a Release (full text) commending the Biden Administration for the Rule change, the ACLU said in part:

The Biden administration announced it would partially repeal a dangerous and unnecessary Trump-era rule, which numerous courts had declared unlawful, that would have allowed health care institutions and providers to deny patients treatment and information based on personal religious or moral beliefs.

Monday, January 08, 2024

Court Limits Discussion of Religion in Trial for Blocking Abortion Clinic Entrance

In United States v. Gallagher, (MD TN, Jan. 5, 2024), a Tennessee federal district court ruled on the extent to which defendants can refer to their religious activities or beliefs and to the First Amendment in their upcoming criminal trial for violation of the Free Access to Clinic Entrances Act. Defendants are charged criminally with barricading the entrance to a Mt. Juliet, Tennessee abortion clinic in a so-called "rescue" operation. The court said in part:

It does not appear to be disputed that these defendants’ actions were motivated, at least in part, by their religious objections to the intentional termination of pregnancies. The Government argues, however, that evidence of those motivations would be “totally extraneous” to the “nature of the” charged offenses and should, therefore, be excluded.... The Government’s argument, however, is in significant tension with the FACE Act itself, which affirmatively places the defendants’ states of mind at issue by criminalizing only “intentional” acts taken “because [the victim] is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. § 248(a)(1). The defendants’ subjective motivations are, therefore, an unavoidable aspect of this case, and it is not clear to the court that those motivations can be accurately represented without at least some incidental reference to the details of their beliefs—which happen, in this instance, to be based in religion....

The court has already ruled that, as a matter of well-settled law, religious motivations are not a defense to a violation of either the FACE Act or the conspiracy statute.... The court, however, will not go so far as to wholly forbid the discussion of the defendants’ religious beliefs for the limited purpose of establishing or refuting intent or purpose.... 

... The defendants cannot turn an ounce of relevance into a gallon of irrelevant political messaging. The court, however, will not bar discussion of the defendants’ views altogether.

... When the defendants prayed or discussed their religious views, those specific actions were protected by the First Amendment. But if, in the next breath, they turned to discussing a plan to unlawfully obstruct the entrance of a clinic, then that conspiracy was just as illegal as it would have been if it had been the sole topic of conversation. Similarly, if they engaged in activities that would, in isolation, be protected by the First Amendment, but they did so while also violating the FACE Act through physical obstruction or intimidation, then the non-criminal components of their actions are no shield against prosecution for the criminal ones. Any argument to the contrary would be improper and will be barred.

The court also ruled that defendants may not present evidence or arguments at trial on various other matters including jury nullification, selective prosecution, potential sentences and good character. (See prior related posting.)

Saturday, January 06, 2024

Supreme Court Grants Review of EMTALA's Impact on State Abortion Restrictions

Yesterday, the U.S. Supreme Court agreed to review an Idaho federal district court decision (see prior posting) that preliminarily enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act. The Supreme Court Order (full text) comes in the companion cases of Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727) (certiorari granted, 1/5/2024). In September 2023, a 3-judge panel of the U.S. 9th Circuit Court of Appeals stayed the district court's injunction pending appeal. (See prior posting.)  However, the full 9th Circuit in an en banc Order vacated the panel's opinion that stayed the injunction and granted en banc review. In yesterday's Order, the Supreme Court allowed plaintiffs to bypass review by the 9th Circuit and present the case to the Supreme Court.  The Supreme Court also again stayed the district court's preliminary injunction that limited enforcement of Idaho's abortion ban. It granted review on the Question Presented in Idaho's Application:

Whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho's Defense of Life Act.

The Court set arguments for the April 2024 argument session. Here is the SCOTUSblog case page that will link to pleadings in the Supreme Court.

AP reports on the Supreme Court's decision. Yesterday President Biden issued a Statement (full text) criticizing the Supreme Court's action, saying in part:

Today’s Supreme Court order allows Idaho’s extreme abortion ban to go back into effect and denies women critical emergency abortion care required by federal law. The overturning of Roe v. Wade has enabled Republican elected officials to pursue dangerous abortion bans like this one that continue to jeopardize women’s health, force them to travel out of state for care, and make it harder for doctors to provide care, including in an emergency. These bans are also forcing doctors to leave Idaho and other states because of laws that interfere with their ability to care for their patients. This should never happen in America.

Wednesday, January 03, 2024

5th Circuit: EMTALA Does Not Require Emergency Abortions

In State of Texas v. Becerra, (5th Cir., Jan. 2, 2024), the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The Department of Health and Human Services' Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act (EMTALA) requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The 5th Circuit said in part:

While EMTALA directs physicians to stabilize patients once an emergency medical condition has been diagnosed, ..., the practice of medicine is to be governed by the states. HHS' argument that "any" type of treatment should be provided is outside EMTALA's purview....

 ... EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child....

... EMTALA leaves the balancing of stabilization to doctors, who must comply with state law.... We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations....

Texas Tribune reports on the decision.

Wednesday, December 13, 2023

Supreme Court Grants Review of FDA's Rules on Prescribing and Distributing Abortion Pill

The U.S. Supreme Court today granted certiorari in two related cases, FDA v. Alliance for Hippocratic Medicine, (Docket No. 23-235, cert. granted 12/13/2023) and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, (Docket No. 23-236, cert. granted, 12/13/2023). (Order List.) (SCOTUSblog case pages 23-235, 23-236) In the single opinion applying to both cases, the U.S. 5th Circuit Court of Appeals upheld portions of a Texas federal district court's orders that stayed actions taken by the FDA in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. The 2016 action increased the gestational age when the drug can be used and lightened certain other dosage and prescribing restrictions. In 2021, in connection with the Covid epidemic, the FDA removed the in-person prescribing requirement for mifepristone, allowing it to be sent by mail. The court found that doctors have standing to challenge these actions, among other things citing conscience injuries to objecting doctors.  Challenges to two other FDA actions on mifepristone were rejected on standing and statute of limitations grounds. (See prior posting.) 

The Supreme Court denied review in Alliance for Hippocratic Medicine v. FDA, (Docket No. 23-395, cert. denied, 12/13/2023) which sought review of the FDA's original approval of mifepristone in 2000. (SCOTUSblog case page.)

The district court's orders are not currently in effect because in April, the U.S. Supreme Court stayed the orders while appeals work their way through the courts. (See prior posting.) 

SCOTUSblog reports on the Supreme Court's grants of review.

Tuesday, December 12, 2023

Texas Supreme Court Reverses Trial Court Order That Allowed an Abortion

 In In re State of Texas, (TX Sup. Ct., Dec. 11, 2023), the Texas Supreme Court directed a trial court to vacate a temporary restraining order that it issued on Dec. 7. The trial court's order (see prior posting) allowed plaintiff Kate Cox who is carrying a fetus diagnosed with a fatal chromosomal condition to obtain an abortion. The Supreme Court said in part:

In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.... 

A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient....

Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard. Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it.

Meanwhile, the Center for Reproductive Rights announced that Ms. Cox has left Texas in order to get health care elsewhere. CNN reports on the Texas Supreme Court's decision.

4th Circuit Hears Oral Arguments on Planned Parenthood Funding Cutoff

The U.S. 4th Circuit Court of Appeals last Friday heard oral arguments (audio of full oral arguments) in Planned Parenthood South Atlantic v. Kerr.  The case, which is on remand from the Supreme Court, involves South Carolina's appeal of an injunction that bars it from terminating Medicaid funding to Planned Parenthood. (See prior posting.) ADF has further background on the case.

Friday, December 08, 2023

Texas Court Issues TRO Permitting an Abortion; Texas AG Responds

 A Texas state trial court yesterday issued a Temporary Restraining Order prohibiting the Texas Attorney General and the state Medical Board from enforcing Texas' abortion ban against plaintiff physician and her staff for performing a D&E abortion for plaintiff Kate Cox who is carrying a fetus diagnosed with a chromosomal condition that will result in its death before birth or at most in a few days after birth. The court in Cox v. State of Texas, (TX Dist. Ct., Dec. 7, 2023), said in part:

The longer Ms. Cox stays pregnant, the greater the risks to her life. Ms. Cox has already been to three emergency rooms with severe cramping, diarrhea, and leaking unidentifiable fluid.... If she is forced to carry this pregnancy to term, she will likely need a third C-section ... [which would] make it less likely that Ms. Cox would be able to carry another child in the future.

Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas' abortion bans and laws permits an abortion in Ms. Cox's circumstances. Dr. Karsan, however, cannot risk liability under Texas's abortion bans and laws for providing Ms. Cox's abortion absent intervention from the Court confirming that doing so will not jeopardize Dr. Karsan's medical license, finances and personal liberty.

Responding to the decision, Texas Attorney General Ken Paxton said in a press release:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions.... and civil penalties of not less than $100,000 for each violation.... And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens.... Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

He also sent a letter (full text) to three hospitals-- which were not parties to the case-- warning that they may be liable for negligently credentialing the physician and failing to exercise appropriate medical judgment if they permit the abortion to be performed in their facility.  Austin-American Statesman reports on the decision.

UPDATE: On Dec. 8, the Texas Supreme Court administratively stayed the trial court's order while it considers the case on appeal.

Appeals Court Hears Religious Challenges to Indiana Abortion Restrictions

On Wednesday, the Indiana Court of Appeals heard oral arguments in Individual Members of the Medical Licensing Board of Indiana et al. v. Anonymous Plaintiff 1. (Video of full oral arguments.) In the case, an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The trial court also certified the case as a class action. (See prior posting.) Indy Star reports on the oral arguments.