Since the Supreme Court overturned Roe v. Wade
with its Dobbs v. Jackson Women's Health Organization decision in June 2022, abortion-rights groups have filed lawsuits to block restrictions in nearly two dozen states. Meanwhile, anti-abortion groups have taken to the courts to erect new barriers to abortion access.Here, Law360 highlights the biggest legal cases over reproductive rights since the Dobbs decision came down, including several that could bring the issue back up to the Supreme Court:
Abortion Pill's Fate Hangs in the Balance
Before the dust settled from the Dobbs decision, a new case took center stage in the national debate over reproductive rights: Alliance for Hippocratic Medicine et al. v. FDA et al.
In late 2022, anti-abortion groups and physicians sued the U.S. Food and Drug Administration in Texas federal court alleging the agency decades ago unlawfully approved the abortion medication mifepristone, which when taken in conjunction with the pill misoprostol is widely used to terminate early pregnancies and treat miscarriages.
But the case burst onto the national stage in April, when U.S. District Judge Matthew J. Kacsmaryk ruled that the FDA had improperly approved the medication and moved to pull its approval, marking the first time a court has struck down an FDA approval.
The FDA along with Danco Laboratories, which distributes the name-brand version of the drug, quickly appealed, and the U.S. Supreme Court in turn fully blocked the order while the case continues to play out. The Fifth Circuit heard oral arguments in the case in mid-May, but has not issued a judgment yet.
Experts say it's likely the high court will weigh in on the case again.
Rebecca B. Reingold, associate director of the O'Neill Institute for National and Global Health Law at the Georgetown University Law Center, said she thinks this case "will almost certainly reach the Supreme Court, regardless of the Fifth Circuit Court of Appeals' pending decision." And if the justices do take up the case, they "will determine how accessible mifepristone will be in the U.S. going forward," Reingold told Law360.
"It also has the potential to undermine the FDA's regulatory authority in general and set a dangerous precedent that could be relied upon by courts to contest other drug approvals in the future," she added.
Stakeholders have refused to stay on the sidelines of this case, launching their own legal challenges in an attempt to preempt future court orders restricting access to mifepristone.
For instance, just moments after Judge Kacsmaryk ruled in the mifepristone case, a Washington federal judge temporarily ordered the FDA to maintain the availability of mifepristone in 17 states and the District of Columbia, which had all filed suit.
Similarly, abortion providers in Kansas, Montana and Virginia in May sued the FDA in Virginia federal court seeking to block the agency from doing anything to hinder the availability of mifepristone. Following a preliminary injunction hearing in early June, the parties are continuing to brief the court.
GenBioPro, the generic distributor of mifepristone, likewise sued the FDA in Maryland federal court, arguing that any future court order blocking the approval of mifepristone without holding hearings and carrying out a risk assessment that would have to justify the drug's removal from the market would be unlawful.
The company also sued West Virginia in federal court, challenging its abortion bans as unlawfully restricting patients' access to mifepristone and, as a result, GenBioPro's ability to market, promote and sell its medication. West Virginia's Republican Attorney General Patrick Morrisey has vowed to defend the law, saying the U.S. Supreme Court "has made it clear that regulating abortion is a state issue." The case is ongoing after U.S. District Judge Robert C. Chambers refused to dismiss the case in May.
Health care providers are also suing the states. North Carolina physician Amy Bryant, for instance, sued the Tar Heel State in federal court for allegedly impeding her professional obligation to treat her patients based on her own best judgment.
Anti-abortion groups, however, have a different view of the debate.
"No federal policy mandates that chemical abortions be allowed nationwide for up to 10 weeks of pregnancy; in fact, Congress specifically declined to enact such a law following the Dobbs decision," Denise Harle, senior counsel and director of the Alliance Defending Freedom's Center for Life, told Law360.
Harle, who has spent much of the last year representing anti-abortion plaintiffs and defendants, said these federal cases "involve absurd arguments that FDA approval of chemical abortion drugs means that states can't have laws governing the use of those drugs."
The case challenging mifepristone's FDA approval is Alliance for Hippocratic Medicine et al. v. FDA et al., case number 23-10362, in the U.S. Circuit Court of Appeals for the Fifth Circuit.
The cases suing the FDA to maintain access to mifepristone are State of Washington et al. v. U.S. Food and Drug Administration et al., case number 1:23-cv-03026, in the U.S. District Court for the Eastern District of Washington; Whole Woman's Health Alliance et al. v. U.S. Food and Drug Administration et al., case number 3:23-cv-00019, in the U.S. District Court for the Western District of Virginia and GenBioPro Inc. v. U.S. Food and Drug Administration et al., case number 1:23-cv-01057, in the U.S. District Court for the District of Maryland.
The cases challenging state-based restrictions on mifepristone are GenBioPro Inc. v. Sorsaia et al., case number 3:23-cv-00058, in the U.S. District Court for the Southern District of West Virginia and Bryant v. Stein et al., case number 1:23-cv-00077, in the U.S. District Court for the Middle District of North Carolina.
Medical Care Chaos
After the Supreme Court erased the constitutional right to abortion, health care providers and hospitals have found themselves between a rock and a hard place.
Emergency physicians are caught between state abortions bans and the Emergency Medical Treatment and Labor Act, or EMTALA, the federal law enacted by Congress in 1986 requiring hospitals receiving Medicare funding to provide certain kinds of emergency medical care.
Following the Dobbs decision, the federal government issued guidance contending that a physician's duty under EMTALA includes providing abortion care where necessary to preserve the health of a pregnant person.
But hospitals have found themselves having to choose whether to abide by that guidance or state abortion restrictions, and the federal guidance soon became the source of heated litigation.
Just weeks after the Dobbs decision, the U.S. Department of Justice sued Idaho, arguing that the state's abortion ban prevents doctors from providing emergency medical treatment required by federal law. An Idaho federal judge agreed with the government's position that EMTALA preempts the state's abortion restrictions and blocked enforcement of the abortion ban to the extent that it conflicts with EMTALA while the case continues. The matter is ongoing.
Meanwhile, a federal judge in Texas reached a very different ruling in a similar case, finding that the federal law does not preempt Texas' abortion statutes. The judge temporarily blocked the federal government's guidance compelling clinicians to provide abortion care in compliance with EMTALA.
The federal government has appealed the Texas ruling to the Fifth Circuit, while Idaho's Republican legislative leaders appealed the ruling in their case to the Ninth Circuit. Both cases remain in the briefing stage.
To Sonia Suter, a George Washington University Law School professor whose area of expertise includes reproductive rights, these EMTALA cases are important because, "contrary to the holding of the Texas district court, I think clear conflicts arise between EMTALA and abortion bans with limited exceptions for maternal health."
"Those conflicts force physicians to choose between violating criminal state law or violating EMTALA," Suter told Law360. A violation of either could be accompanied by steep penalties.
Lawrence Gostin, director of the O'Neill Institute for National and Global Health Law at the Georgetown University Law Center, said he thinks that if a circuit court split on this question arises, it "would likely prompt the Supreme Court to take up and issue a decision on the matter."
Another brewing legal conflict involves the Title X Family Planning Program, a federal program created in 1970 to provide funding for clinics to supply free or low-cost services such as contraception and pregnancy-related counseling.
In a pre-Dobbs lawsuit, state attorneys general from Ohio, Alabama, Arizona, Arkansas, Florida, Kansas, Kentucky, Missouri, Nebraska, Oklahoma, South Carolina and West Virginia had argued that a 2021 rule expanding Title X funding to clinics that connect clients to abortion services violates federal law. In that case, an Ohio federal judge denied the plaintiffs' bid to temporarily block Title X funding to programs where abortion is promoted as part of family planning. The Sixth Circuit heard oral arguments in the case in October but has not yet issued a judgment.
"This case is chiefly important, as a decision that forces clinics to choose whether to deny patients abortion counseling or lose critical funding would result in huge implications to health and equity," Gostin said.
The EMTALA cases are Texas et al. v. Becerra et al., case number 23-10246, in the U.S. Court of Appeals for the Fifth Circuit and U.S. v. State of Idaho, case number 23-35153, in the U.S. Court of Appeals for the Ninth Circuit.
The Title X case is Ohio et al. v. Xavier Becerra et al., case number 21-4235, in the U.S. Court of Appeals for the Sixth Circuit.
Pregnant Patients Sue
In the year since the Dobbs decision came down, other suits have highlighted how restrictive state abortion bans pose a medical threat to pregnant people.
Plaintiff Amanda Zurawski and 14 other women in Texas sued the state this spring, claiming its abortion bans endangered their lives while they were experiencing serious and life-threatening pregnancy-related emergencies.
The plaintiffs all argue that Texas' abortion bans are ambiguous when it comes to a pregnant person's health and safety. Many of the plaintiffs have recounted experiences with physicians and hospitals who they say refused to provide them standard-of-care treatment during their medical crises because of state abortion restrictions, causing the patients to experience physical and emotional pain.
Amal Bass, interim co-executive director of the Women's Law Project, told Law360 that these plaintiffs "include people who had to travel thousands of miles for care out of state after receiving a devastating fetal diagnosis or developing a dangerous medical complication, highlighting the extreme harm that abortion bans cause to pregnant people even when they nominally include an exception for 'life endangerment.'"
Meanwhile, Jennifer D. Oliva, a law professor at Indiana University, Bloomington's Maurer School of Law, told Law360 that "the factual claims in this lawsuit are heartbreaking and worthy of public attention."
She added that this case is "quite important from a legal perspective, because the Supreme Court did not provide the states, medical professionals, pregnant people or anyone else with any guidance about the federal constitutional rights retained by pregnant people suffering from serious and life-threatening pregnancy-related medical emergencies in the Dobbs decision."
Reingold, of Georgetown Law, noted that along with the EMTALA cases, how this case is resolved could clarify "when it is legal to provide medically necessary abortions in states with total bans."
The case is Amanda Zurawski et al. v. State of Texas et al., case number D-1-GN-23-000968, in the 353rd District Court of Travis County, Texas.
State Constitutional Challenges
Bass, of the Women's Law Project, told Law360 that her organization has been representing abortion providers in pre-Dobbs litigation challenging a Pennsylvania state law that prohibits Medicaid coverage of most abortion care.
Pennsylvania's Medicaid coverage ban, Bass said, "infringes upon the fundamental right to abortion in violation of the robust equal protection provisions of the Pennsylvania Constitution. This is a case about equality and the ability for people with reproductive capacity commonly associated with women to decide their futures."
This "is a form of sex discrimination that reinforces sex-based stereotypes of the role women play in society," Bass said.
Plaintiffs in the case seek a court declaration that abortion is a fundamental right under the Pennsylvania Constitution. The case, launched in 2019, remains pending in the Pennsylvania Supreme Court.
Constitutional challenges to abortion restrictions are also in motion elsewhere. Since Roe's reversal, more than 40 cases have been launched challenging abortion restrictions in nearly two dozen states, with a wide array of claims including alleged violations of states' constitutional provisions that guarantee a right to privacy and equal protection under the law.
The Florida Supreme Court in January agreed to hear abortion providers' challenge to the state's 15-week abortion ban, but declined to enjoin the restriction while the case is pending. Meanwhile, Florida legislators passed a six-week abortion ban, though that has yet to go into effect.
This spring, a South Carolina state judge temporarily halted enforcement of the state's freshly passed six-week abortion ban until the state's Supreme Court resolves a case against it. The state justices blocked a similar law in January after ruling that South Carolinians have a constitutional right to privacy that includes the right to abortion.
Meanwhile, a state judge in Wyoming agreed to temporarily block a statewide abortion ban from taking effect while a lawsuit plays out.
And the Utah Supreme Court in October upheld a lower court's injunction against an abortion ban in a case brought by abortion providers who say the statute violates Utahans' rights to privacy, to determine family composition, to equal protection and to bodily integrity, among other things, as well as prohibitions on involuntary servitude.
But to Harle, with the conservative Christian legal advocacy group Alliance Defending Freedom, these types of challenges to state restrictions on abortion don't hold water.
"The countless post-Dobbs state law challenges are unmoored from text or tradition — abortion advocates often desperately point to a kitchen sink full of constitutional provisions, claiming that a so-called 'right' to abortion exists somewhere in the law," Harle said.
The Pennsylvania Medicaid coverage case is Allegheny Reproductive Health Center et al. v. Pennsylvania Department of Human Services et al., case number 26 MAP 2021, in the Supreme Court of Pennsylvania.
The Florida case is Planned Parenthood of Southwest and Central Florida et al. v. State of Florida et al., case number SC22-1050, in the Supreme Court of the State of Florida
The South Carolina case is Planned Parenthood South Atlantic et al. v. State Of South Carolina et al., case number 2023CP4002745, in the Richland County Court of Common Pleas for the Fifth Judicial Circuit of South Carolina.
The Wyoming case is Danielle Johnson et al. v. State of Wyoming et al., case number 18853, in the District Court of the Ninth Judicial District in and for Teton County, Wyoming.
The Ohio case is Preterm-Cleveland et al. v. David Yost et al., case number 2023-0004, in the Supreme Court of Ohio.
The Utah case is Planned Parenthood Association of Utah et al. v. State of Utah et al., case number 20220696-SC, in the Supreme Court of the State of Utah.
Religious Freedom at the Forefront
The religious freedom argument against abortion bans appears to have gained significant momentum, and legal experts say a circuit split on the issue could lead the U.S. Supreme Court to wade into the argument.
For instance, the American Civil Liberties Union filed a lawsuit in Indiana state court on behalf of Hoosier Jews for Choice and five anonymous women who practice a variety of religions including Judaism, Islam, Paganism and Episcopalian Christianity. They claim Indiana's abortion ban violates the state's own Religious Freedom Restoration Act. A state court granted the plaintiffs a preliminary injunction in December, and the state government quickly appealed the decision to the Indiana Court of Appeals.
The Satanic Temple, which describes itself as a nontheistic religion, has likewise used religious freedom arguments in lawsuits challenging abortion bans in Indiana, Idaho and Texas, arguing that they interfere with followers' religious rights in violation of state laws.
"Abortion bans enshrine one religious viewpoint into law, violating the constitutional rights of people with other religious and personal viewpoints," Bass, of the Women's Law Project, told Law360.
Gostin, of Georgetown Law, said he thinks religious freedom cases have a strong chance of making it all the way up to the U.S. Supreme Court.
"The current Supreme Court has been highly deferential to religious freedom, and would likely leap at an opportunity to define abortion in the context of a freedom-of-religion debate and expand religious freedom jurisprudence," he told Law360.
But Suter, the George Washington University professor, noted that many of the high court's recent rulings have "protected a particular form of religious expression, namely, certain strands of Christianity."
"It will be interesting to see whether the court will be willing to hear some of these cases on appeal to address whether the Constitution protects non-Christian religious views that conflict with abortion bans," she added.
The Indiana cases are Anonymous Plaintiff 1, et al. v. Individual Members of the Medical Licensing Board of Indiana, case number 22A-PL-02938, in the Indiana Court of Appeals and the Satanic Temple v. Holcomb et al., case number 1:22-cv-01859, in the U.S. District Court for the Southern District of Indiana.
--Editing by Alanna Weissman and Emily Kokoll.
For a reprint of this article, please contact reprints@law360.com.