Americans United for Life is pleased to share our 2023 Q2 Life Litigation Report. The report tracks major bioethics cases across the country in federal and state courts. The goal of the report is to provide a useful resource in addition to AUL’s expertise on pro-life legal and policy issues. Here are some notable cases included in the report:
Abortion Pill Litigation Heats Up
Litigation has moved quickly in Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, the case challenging the Food & Drug Administration’s (FDA) approval and deregulation of chemical abortion. After the Supreme Court issued a stay of the district court’s order that suspended the 2000 approval of chemical abortion drugs, the case has returned to the Fifth Circuit, which has received briefing and held oral argument.
State of Washington v. Food & Drug Administration is before the Ninth Circuit after a district court preliminarily enjoined the FDA from “altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 [REMS] in Plaintiff States.”
GenBioPro, the manufacturer of the generic chemical abortion drug, sued in federal court to keep its drug on the market in GenBioPro, Inc. v. U.S. Food & Drug Administration. The drug manufacturer also has an existing lawsuit in early litigation that alleges the FDA’s regulation of chemical abortion drugs preempts a state abortion abolition law in GenBioPro, Inc. v. Sorsaia.
There are other new chemical abortion lawsuits. In Whole Woman’s Health Alliance v. United States Food & Drug Administration, abortionists have challenged the FDA’s continued use of REMS (risk evaluation and mitigation strategies). A lawsuit has been filed against a Colorado law prohibiting the chemical abortion pill reversal in Bella Health and Wellness v. Weiser. In City of Eunice v. Torrez, a pro-life city has sought to enforce its city ordinance which requires compliance with federal restrictions on the mailing of chemical abortion drugs.
State Battles Over Abortion
Litigation has continued over whether state constitutions protect abortion. In Oklahoma Call for Reproductive Justice v. Drummond, the Oklahoma Supreme Court held “the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.” The court subsequently held unconstitutional two abortion acts modeled after Texas S.B. 8 in Oklahoma Call for Reproductive Justice v. State of Oklahoma, finding the bills that violated Drummond’s right to terminate a pregnancy to preserve a mother’s life. The North Dakota Supreme Court held the abortionists “demonstrated likely success on the merits that there is a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances, and the statute is not narrowly tailored to satisfy strict scrutiny” in Wrigley v. Romanick.
The Georgia Supreme Court heard oral argument in the heartbeat law case, SisterSong Women of Color Reproductive Justice Collective v. State of Georgia, including the issue of whether the Georgia Constitution extends to abortion. The Kansas Supreme Court held oral arguments in Hodes & Nauser v. Kobach, involving the state’s dismemberment law, and Hodes & Nauser v. Stanek, which challenges health and safety licensing and chemical abortion provisions. The Kansas cases implicate the existing state constitutional “right” to abortion.
In Weems v. Montana, the Montana Supreme Court affirmed the permanent injunction against a physician-only rule so that advanced practice registered nurses may provide abortions. The court also crafted an abortion litigation standard, writing that “Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk.”
The Iowa Supreme Court also is considering the litigation standard for abortion cases after hearing oral argument on the state’s heartbeat law in Planned Parenthood of the Heartland, Inc. v. Reynolds. Last year, the court reversed its decision that devised an abortion right but left open the issue of the proper abortion litigation standard.
The Arizona Supreme Court is considering whether to review Planned Parenthood Arizona Inc. v. Mayes, which implicates the state’s pre-Roe law. You can read AUL’s friend-of-the-court brief in support of the petition for review here.
End-of-Life Litigation Updates
Disability rights advocates have challenged California’s assisted suicide law for unlawfully discriminating against persons with disabilities in United Spinal Association v. State of California.
Litigation came to a somber end in Shavelson v. Bonta when an appeal was voluntarily dismissed after the sole remaining patient-plaintiff passed away. The case had unsuccessfully urged that federal disability rights laws required expansion of the California End of Life Option Act to include active euthanasia of persons with disabilities.
Conscience rights advocates had two victories against assisted suicide. In Christian Medical & Dental Associations v. Bonta, per the parties’ stipulation, the district court entered final judgment and issued a permanent injunction that prevents California state officials from infringing on assisted suicide conscientious objections. New Mexico amended its assisted suicide law to strengthen conscience protections for medical professionals and organizations that object to assisted suicide, and, accordingly, litigation was voluntarily dismissed in Lacy v. Torrez.
