How judges blocking new, post-Roe abortion bans are reasoning

Judges are using different legal rationales to block state abortion bans

Earlier this year, abortion rights groups were grasping for a strategy on how to keep abortions legal as the Supreme Court appeared poised to overturn Roe v. Wade’s decades-old federal protections.

Their response is multipronged. But a big part of it is challenging new state abortion restrictions in court.

Today we’re taking a closer look at the legal arguments judges are using to block abortion restrictions. A flurry of lawsuits against bans on the procedure were filed after the nation’s highest court ended the constitutional right to an abortion in June, moving the battle over access to state courthouses. In at least eight states, judges have recently blocked the bans from taking effect at least temporarily, though it will be a while before final decisions come down the pike. 

The demise of Roe means courts and judges are ruling on abortion in a new legal and political environment. The tussle is just beginning, and it’s unclear how successful the new effort will be in the long run — and what legal arguments will ultimately stick. 

• “If the Kentucky Supreme Court says something, that means absolutely nothing for a lot of other state Supreme Courts,” said Mary Ziegler, a law professor at the University of California at Davis. “This is going to be a much more fragmented landscape, and so an argument that may really fare well in one place may not fare well some place else.”

There are various arguments abortion rights groups are making to attempt to strike down bans — and varying reasons some judges have decided to preliminarily grant those requests. The legal rationales are falling into several different buckets, as our editor Paige Winfield Cunningham recently noted in the 5-Minute Fix newsletter (sign up here!)

The first: The state constitution may allow for legal abortions. Some courts have pointed to clauses in their state’s constitution that they contend either protect the right to an abortion — or may offer such protections, though the law is unsettled. This includes the right to privacy, bodily autonomy and the freedom for residents to make their health-care decisions.

• In Indiana: The state was the first to pass a new prohibition on the procedure in the wake of the Supreme Court’s ruling, but an Indiana judge blocked the near-total ban a week after the new law took effect. In the September order granting a preliminary injunction, Owen County Judge Kelsey Hanlon wrote that it was an “open question” whether the right to privacy exists, but that there was a “reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees” of the state constitution.
• In Ohio: A state judge temporarily blocked a ban on abortion after fetal cardiac activity is detected at roughly six weeks. Hamilton County Common Pleas Court Judge Christian Jenkins wrote that “no great stretch is required to find that Ohio law recognizes a fundamental right to privacy, procreation, bodily integrity and freedom of choice in health care decision making.”

The second: The state has conflicting abortion laws. In blocking abortion bans, a few judges have said it’s their job to decipher between a web of varying state rules already on the books.

• In Arizona: An appellate court halted enforcement of the state’s near-total ban on abortion, staying a lower court’s order to reinstate restrictions rooted in a Civil War-era law. In a one-page order last month, Judge Peter J. Eckerstrom said the lower court may have erred by refusing to consider a ban on most abortions after 15 weeks enacted this year. “Arizona courts have a responsibility to attempt to harmonize all of this state’s relevant statutes,” he wrote.
• In South Carolina: The state Supreme Court has temporarily blocked the state’s ban on the procedure after roughly six weeks. In its unanimous August order, the court didn’t weigh in on the merits of the case, but rather said the state legislature had essentially codified Roe’s framework in 1974 — and that state code “arguably creates a conflict in the law” with the “heartbeat” ban.

The third: Abortion bans passed before Roe aren’t constitutional. That was the rationale in Georgia, which legal experts, like Ziegler, said they hadn’t seen before last week. 

• In Georgia: A Fulton County judge overturned the state’s ban on abortion after roughly six weeks last Tuesday, a decision the state immediately appealed to the Georgia Supreme Court. In a 15-page ruling, Fulton County Superior Court Judge Robert McBurney wrote that two key parts of the law “were plainly unconstitutional when drafted, voted upon, and enacted” because the state passed the restriction on the procedure before the Supreme Court overturned Roe’s federal abortion protections.

Justice Alito denies disclosing 2014 Hobby Lobby opinion in advance

Supreme Court Justice Samuel Alito denied an allegation from a former antiabortion leader that he or his wife had disclosed the outcome of a 2014 case on contraceptives and religious rights, our colleagues Robert Barnes and Ann E. Marimow report. 

The New York Times reported Saturday that Rob Schenck, a one-time evangelical minister, said he was told about the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced publicly. In a letter sent to Chief Justice John G. Roberts Jr. that was shared with the Times, Schenck said he learned about the ruling shortly after Gayle Wright, a conservative donor to his nonprofit organization Faith and Action, had dinner with Alito and his wife, Martha-Ann. 

Wright told the Times, and later told The Post, that Schenck’s story wasn’t true. Alito acknowledged in a statement that he and his wife have a “casual and purely social relationship” with the Wrights, and denied having told the Wrights any information about the outcome of the case. 

Alito authored the opinion in the case, which held that family-owned businesses didn’t have to provide certain contraceptives under the Affordable Care Act’s insurance requirements based on a religious objection. Schenck told the Times he used the information to prepare a public-relations campaign.

The bigger picture: The allegation comes months after the unprecedented leak of Alito’s draft opinion overturning the constitutional right to an abortion established in Roe. The justice recently denounced the episode as a “grave betrayal of trust” that made the court’s conservative majority “targets for assassination.” 

Planned Parenthood Action:

Conservative group sues FDA to revoke approval of abortion pill

A conservative group sued the Food and Drug Administration in federal court in Texas on Friday in an effort to reverse the agency’s approval of the abortion medication mifepristone, The Post’s Laurie McGinley and Ariana Eunjung Cha report. 

The Alliance Defending Freedom — which has supported antiabortion litigation in the past, including the landmark Supreme Court case that overturned Roe v. Wade — claimed in its lawsuit that the FDA lacked the authority to approve mifepristone, did not adequately study the medication and that the drug is unsafe. The suit also named the federal Department of Health and Human Services as a defendant.

The agency approved the medication as safe and effective through the first seven weeks of pregnancy about two decades ago, and later extended it to 10 weeks. The drug, which is used in more than half of abortions performed in the United States, is considered to be safe and effective by provides like top officials for the American Medical Association and the American College of Obstetricians and Gynecologists. 

The drug has become a highly contentious issue since the Roe decision, as women have increasingly turned to using abortion pills in states that have moved to restrict or ban the procedure. The lawsuit coincides with mounting pressure from abortion rights activists and some Democrats, who are urging the agency to lift additional restrictions on access to the pill.

More from the Alliance Defending Freedom:

In other abortion news … 

Former vice president Mike Pence said he would support a federal 15-week abortion ban proposed by Sen. Lindsey Graham (R-S.C.) if he were in Congress. Pence is viewed as a potential Republican presidential contender in 2024, but thus far has been noncommittal about whether he intends to run. 

Pence also told CBS’s “Face the Nation” host Margaret Brennan that he believes there should be legal protections for fertility treatments, which some abortion rights advocates have claimed could be complicated by the Supreme Court’s ruling. Pence said he as his wife, Karen, struggled with infertility, and used in vitro fertilization numerous times.

• Former Theranos CEO Elizabeth Holmes was sentenced to more than 11 years in prison Friday for misleading investors about her now-defunct blood-testing start-up, our colleagues Rachel Lerman and Gerrit De Vynck write.
• Provention Bio’s new Type 1 diabetes drug will cost $13,850 per vial, which translates to a wholesale price of $193,900 for a full 14-day course. The drug aimed at delaying onset of the disease is the first of its kind approved by federal regulators, Reuters reports.
• The next generation of coronavirus treatments may use monoclonal antibodies that target parts of the rapidly mutating virus that have remained consistent across variants, in an effort to make them more resistant to new strains of covid-19, The Post’s Mark Johnson reports.
• Pfizer announced Friday that its new coronavirus booster shot targeting the omicron variant successfully generated antibodies that offered protection against several of its subvariants, including BA.5 and the quickly spreading BQ.1.1 strain.

Fixing the broken lovelies (By Eli Saslow | The Washington Post )

Doctor says she shouldn’t have to turn over patients’ abortion records ( By Kim Bellware | The Washington Post)

RSV, covid and flu push hospitals to the brink — and it may get worse (By Sabrina Malhi | The Washington Post)

Thanks for reading! See y’all tomorrow.