US abortion rights still in flux two years after Roe reversal
Updates to reflect recent Supreme Court decision, paragraphs 20-21
By Brendan Pierson
July 3 (Reuters) -Nearly two years after the U.S. Supreme Court overturned its landmark 1973 ruling in Roe v. Wade, litigation over abortion has exploded.
Justice Samuel Alito wrote in 2022's Dobbs v. Jackson Women's Health Organization decision that the court's longstanding precedent had "enflamed debate and deepened division." He said it was time to take the abortion issue out of the hands of the court and return it "to the people's elected representatives."
Rather than limit court battles, the ruling led to a number of state court cases challenging various aspects of abortion bans or restrictions imposed by more than 20 Republican-led states in the wake of Roe's reversal. Many key issues are unresolved.
Here is a look at the different kinds of lawsuits pending, and where these challenges are brewing.
LAWSUITS CHALLENGING BANS OUTRIGHT
For decades, advocates could challenge abortion restrictions in federal court, citing Roe v. Wade. With that shield gone, they have instead shifted to bringing their cases in state courts, arguing that bans or restrictions on abortions infringe on women's rights to privacy, liberty or due process guaranteed in state constitutions.
In all states where challenges have been fought to a final ruling from a state's highest court - including in Florida, Idaho and Texas - new restrictive abortion laws have been upheld. No new ban has been permanently struck down.
Other such challenges, however, remain pending, including in Georgia, Utah and Wyoming.
In South Carolina, a ban on abortion after the detection of what might be defined as a fetal heartbeat has largely been upheld, but the case remains ongoing as plaintiffs are asking the court to rule that the ban begins around nine weeks of pregnancy, when the chambers of the fetal heart are formed, and not six when electrical activity is first detected.
Some cases asserting a fundamental right to abortion challenge not new state bans, but local laws, as in New Mexico, or 19th century laws that have long been unenforced, as in Wisconsin.
ABORTION PILLS
Medication abortion, which uses the drugs mifepristone and misoprostol to induce abortion in early pregnancy, accounted for 63% of U.S. abortions last year, up from 53% in 2020, according to the Guttmacher Institute, an abortion rights research organization.
Anti-abortion advocates have sought to restrict mifepristone's availability, concerned that pills can be easily obtained even in states where abortion is banned.
The Supreme Court last week rejected an appeal by abortion opponents that would have significantly restricted mifepristone's distribution in all states if successful. However, similar claims by three Republican-led states remain pending in a lower court.
At the same time, lawsuits by abortion rights advocates seek to expand or preserve access to the drug in Virginia and Washington state. Another such case filed in North Carolina will likely be appealed to the 4th U.S. Circuit Court of Appeals after a judge struck down some restrictions on mifepristone in that state.
MEDICAL EMERGENCIES
A growing number of cases center on exceptions in abortion bans for women facing medical emergencies. These lawsuits argue that the exceptions, which typically allow an abortion to be performed only to save the mother's life and sometimes to prevent serious injury, violate women's basic rights, or are so unclear that doctors do not know when they apply and are therefore afraid to rely on them.
Such lawsuits are currently pending in states, including Idaho, Indiana, North Dakota, Tennessee and Texas. Both the Idaho and Texas cases are about whether the state's abortion bans conflict with a federal law requiring emergency rooms to stabilize patients, while the other cases are about interpreting state law.
An Idaho judge has partly blocked that state's ban on those grounds, while an appeals court has refused to block Texas's. The U.S. Supreme Court on Thursday declined to decide the Idaho case, after initially agreeing to hear it.
INTERSTATE TRAVEL
Several states and counties where abortion is banned have passed measures aimed at making it more difficult for their residents to travel to other states to get the procedure, raising new legal issues about governments' ability to legislate conduct outside of their borders.
Lawsuits over such measures are currently pending in Alabama, which criminalizes helping anyone obtain an abortion, and Idaho, which is seeking to revive a state law prohibiting transporting minors across state lines for an abortion without parental consent.
In Texas, a man is suing three women for allegedly helping his ex-wife obtain an abortion, an early test of a state law allowing such lawsuits.
LEGAL, BUT RESTRICTED
Finally, abortion rights groups are challenging some state laws that generally allow abortions but with restrictions. For example, a North Carolina lawsuit challenges a requirement that certain abortions be performed in hospitals, and a Michigan lawsuit challenges a 24-hour waiting period.
In Arizona, a lawsuit challenges a "fetal personhood" law, which advocates say could be used to restrict abortion even though it is legal in the state. (The state's highest court earlier this year revived a 19th century abortion ban, though the legislature subsequently repealed it.)
While such lawsuits once relied on Roe v. Wade, they now allege that such restrictions violate state constitutional rights.
Interstate travel for abortion Interstate travel for abortion https://reut.rs/3KLtoqo
Abortion for medical emergencies https://reut.rs/3KEbTbN
Abortion pill access https://reut.rs/3RqUo2e
Difficulty to access abortion even if legal https://reut.rs/3xfkLkT
Abortion bans https://reut.rs/3Rpk5k2
Reporting By Brendan Pierson in New York, Editing by Alexia Garamfalvi, Aurora Ellis and Trevor Hunnicutt
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