Americans United for Life (AUL) is pleased to share our 2023 Q3 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 Cases in Federal Courts
Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration has taken center stage as one of the biggest abortion cases this year. Earlier this year, a district court issued a Section 705 stay of the FDA’s 2000 approval of mifepristone. In August, the 5th Circuit affirmed the reinstatement of safeguards for women and girls seeking abortion—such as the in-person dispensing of the drugs and follow-up visits to ensure the woman is not suffering complications or has retained fetal tissue—but reversed the stay on the initial drug approval of mifepristone and its generic version. The Food & Drug Administration and Danco Laboratories recently filed petitions for a writ of certiorari in the Supreme Court.
In United States of America v. Handy, juries have found pro-life defendants guilty of violating the Freedom of Access to Clinic Entrances (FACE) Act. The case has presented some interesting legal questions, including the argument—which the district court rejected—that the FACE Act is predicated on a violation of a constitutional right, but Dobbs recognized there is no constitutional right to abortion.
Litigation has continued in the Emergency Medical Treatment and Labor Act (EMTALA) cases. State of Texas v. Becerra, the pro-life challenge to the EMTALA abortion mandate, is briefed before the 5th Circuit and tentatively calendared for oral argument in early November. United States of America v. State of Idaho, the anti-life lawsuit seeking to enforce the abortion mandate, is currently in briefing before the 9th Circuit.
A district court issued a notable opinion in July on a partial denial of a motion to dismiss in State of Texas v. Becerra (a different case from the EMTALA lawsuit mentioned above), regarding a pro-life challenge to Health and Human Services’ guidance that requires pharmacies to dispense chemical abortion drugs in violation of state law purportedly as a condition of accepting certain federal funds. In the opinion, the court highlighted how the executive branch has inserted pro-abortion policies throughout executive orders and administrative law to undermine the Supreme Court’s holding in Dobbs yet avoid judicial review.
State Constitutional Battles
In January in Planned Parenthood South Atlantic v. State of South Carolina (Planned Parenthood I), the South Carolina Supreme Court found a privacy right to abortion within the state constitution, which “is not absolute, and must be balanced against the State’s interest in protecting unborn life.” In August in Planned Parenthood II, the South Carolina Supreme Court upheld the state’s heartbeat law, finding the state legislature properly balanced its interest in protecting unborn life against privacy interests.
The Indiana Supreme Court held the state constitution “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions” in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc.
In Planned Parenthood of Southwest and Central Florida v. State of Florida, the Florida Supreme Court heard oral argument earlier this month. The case implicates the state’s purported constitutional right to abortion.
The Arizona Supreme Court has granted a petition for review of the state’s pre-Roe law in Planned Parenthood Arizona, Inc. v. Mayes. Oral argument is set for December.
Sidewalk Counselors’ Free Speech Rights in a Post-Roe America
One of the lingering legal questions post-Dobbs has been over whether governments may enact bubble zones that prohibit sidewalk counselors from approaching and offering information about abortion alternatives to women on public sidewalks outside abortion facilities. In 2000 in Hill v. Colorado, the Supreme Court upheld this type of bubble zone through an abortion distortion analysis of the First Amendment. In Vitagliano v. County of Westchester, New York, a sidewalk counselor has asked the Supreme Court to review her case and reexamine Hill’s tenuous legal reasoning. Notably, there are other ongoing cases in federal courts that have raised the issue of Hill’s validity in this post-Roe world, such as Turco v. City of Englewood, New Jersey and Coalition for Life St. Louis v. City of Carbondale, Illinois.
A district court is considering the motions to dismiss in United Spinal Association v. State of California, a disability rights challenge to California’s End of Life Option Act, alleging that the law allows the state to engage in unlawful disability discrimination.
Assisted suicide activists recently filed a lawsuit challenging New Jersey’s residency requirements in Govatos v. Murphy. Currently, only two states—Oregon and Vermont—do not require in-state residency to receive assisted suicide prescriptions, which has raised the concern of suicide tourism. This lawsuit follows the larger 2023 trend of state battles over whether to expand assisted suicide.