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June 29, 2022

The battle over abortion rights is shifting to the states

Daily Briefing

    As states across the country move to ban abortions following the Supreme Court's decision to overturn the 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, lawsuits, emergency contraception rationing, and reproductive care legislation follow in response.

    Check out our new resource page for post-Roe implications for health care

    Abortion rights proponents file lawsuits in states with bans

    Following the Supreme Court's decision on Friday, 13 states with "trigger laws" enacted bans against abortion. In some states, such as Kentucky and Missouri, the bans went into effect immediately, while other states had to wait for their attorney generals to certify the change or will have their bans go into after 30 days.

    Since then, abortion rights proponents have filed lawsuits in around half of the 13 states with trigger laws, including Idaho, Kentucky, Louisiana, Mississippi, Texas, and Utah.

    In Louisiana, the Center for Reproductive Rights, along with Boies Schiller Flexner, filed a lawsuit against the state's abortion ban that automatically went into effect after Roe's overturn. A judge has since blocked enforcement of the ban pending a review of the law, with a hearing set for July 8.

    "We are committed to this monumental legal challenge – not to perpetuate an endless political battle, but to ensure our patients' wellbeing and so that they may draw strength from our dedication to this fight," said Kathaleen Pittman, an administrator at Hope Medical Group, one of the organizations represented in the lawsuit.

    In addition, the Planned Parenthood Association of Utah and the American Civil Liberties Union requested a temporary restraining order against Utah's abortion ban, arguing that it violated the state's constitution. On Monday, 3rd District Judge Andrew Stone granted the restraining order, and abortion care will be allowed to continue for the next 14 days.

    "Today is a win, but it is only the first step in what will undoubtedly be a long and difficult fight," said Karrie Galloway, president and CEO of the Planned Parenthood Association of Utah.

    Separately, governors of states where abortion is legal, including California, Washington, and Illinois, are currently working to provide more protection for abortion providers and patients. Some of these protections include expanding the providers who can perform abortion, increasing access to abortion medication, and making telehealth for reproductive care more accessible.

    In addition, Govs. Gavin Newsom (D-Calif.), Kate Brown (D-Ore.), and Charlie Baker (R-Mass.) have said they would protect providers and patients from extradition requestions from other states with laws against abortion.

    Demand for emergency contraception surges, some retailers ration

    According to the Wall Street Journal, the demand for over-the-counter emergency contraceptives has spiked significantly, as many people worry about their access to reproductive care.

    For example, Stix, a vaginal and reproductive health company, said demand for its emergency contraceptive pill jumped more than 600% in the 24 hours after the Supreme Court's decision. "Seventy-two percent of those people were buying more than one dose," said Cynthia Plotch, co-CEO of Stix.

    Similarly, Wellspring Meds said it sold 6,000 units of emergency contraception the day of the Supreme Court's decision, up from 1,000 the day before. "I don't think anyone is prepared to support the demand" with the current supply available, said Ariel Kondov, one of the company's owners.

    In addition, major retailers, including CVS Health, Walmart, and Rite Aid, have begun limiting purchases of emergency contraceptives in their stores, which were either in short supply or out of stock. In a statement, CVS said it is temporarily limiting purchases of emergency contraceptives "to ensure equitable access and consistent supply on store shelves."

    On Monday, Planned Parenthood advised against stockpiling emergency contraception due to their limited shelf life and because hoarding supplies could limit access for individuals who have an immediate need.

    Officials take steps to ensure access to contraception, weigh legislative measures

    Under the Affordable Care Act (ACA), insurers are required to cover at least one form of contraception for each FDA-approved method with a co-pay and provide alternatives if a patient's preferred contraception is denied. However, the House Committee on Oversight and Reform last month found that insurers were not consistently offering alternatives.

    In a letter from HHS Secretary Xavier Becerra, Labor Secretary Marty Walsh, and Treasury Secretary Janet Yellen, they voiced concerns about health plans denying coverage for birth control and said their departments "may take enforcement or other corrective actions as appropriate" if insurers do not take steps to comply with the law.

    "It is more important than ever to ensure access to contraceptive coverage without cost sharing, afforded by the ACA," they wrote.

    On Monday, Becerra and Walsh met with insurers, including Anthem, Centene, and Blue Cross Blue Shield Association, and industry trade groups, including AHIP, the Association for Community Affiliated Plans, and the Business Group on Health, to ensure that they are providing contraceptives at no cost to their plan members.

    Separately, Speaker Nancy Pelosi (D-Calif.) on Monday outlined several legislative proposals House Democrats are considering, including:

    • A law to codify the right to abortion
    • A law to ensure individuals the right to cross-state travel to preempt prohibitions against accessing abortion care in states where it's legal
    • A law to protect patient's reproductive health data, such as those in apps or on website searches, from being collected and sent to third parties

    According to Pelosi, the third proposal is designed to prevent the data from being "used against women by a sinister prosecutor in a state that criminalizes abortion." (Berg/Olander, Politico, 6/27; Choi, The Hill, 6/27; Folmar, The Hill, 6/27; Oshin, AP/The Hill, 6/27; Terlep, Wall Street Journal, 6/28; Goldberg/Creswell, New York Times, 6/28; Rosman/Cherelus, New York Times, 6/27; Owermohle, Politico, 6/27; Weixel, The Hill, 6/27; Lillis, The Hill, 6/27)

    The business implications of overturning Roe v. Wade

    Access our new resource library

    physiciansThe recent Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization has triggered a cascade of uncertain consequences for health care leaders and the patients they serve.

    Going forward, our research teams will be updating this new resource page with helpful analysis and deep dives, including: 

    Access now

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