As February begins, federal and state court cases continue to develop that will shape the legal status of sexual and reproductive health care in states and nationwide.
Below you will find new updates to our December 2022 memo, including in cases related to mifepristone in the Northern District of Texas, another new case on contraception also in the Northern District of Texas and federal courts in North Carolina and West Virginia.
TO: Interested Parties
FROM: Planned Parenthood Federation of America
RE: Court Cases to Watch on Sexual and Reproductive Health Care in 2023
ORIGINAL DATE: December 21, 2022
LAST UPDATED: February 8, 2023
Already, more than 1 in 3 states have banned or severely restricted abortion since the Supreme Court overturned Roe v. Wade in June 2022. Still, anti-abortion rights activists and politicians want to further strip people of control over their own bodies, lives, and futures by any means necessary — which increasingly means through the courts.
Ongoing federal and state court cases related to sexual and reproductive health are listed below. Please note: While we endeavor to keep this memo up-to-date, these cases are actively evolving, so the below information is subject to change.
Cases before Judge Matthew J. Kacsmaryk, Northern District of Texas:
- Baseless Allegations of Medicaid Fraud Against Planned Parenthood (United States ex rel. Doe v. Planned Parenthood Federation of America)
- This lawsuit was filed by the state of Texas and an anonymous plaintiff against the three Planned Parenthood Texas affiliates and Planned Parenthood Federation of America for more than $1.8 billion, alleging that the affiliates defrauded the state's Medicaid system by getting reimbursed for birth control, cancer screenings, and other basic non-abortion health care services.
- Simply put, Planned Parenthood did not commit Medicaid fraud — two previous courts ruled that Planned Parenthood affiliates could provide these services. In addition, the states of Texas and Louisiana knew affiliates were providing the services, reimbursed them for the services, and never asked the affiliates to repay the state. Now, this lawsuit demands that PPFA and the Planned Parenthood Texas affiliates pay as much as $1.8 billion in civil penalties on state Medicaid payments, which totaled less than $17 million over a four-year period.
- Notably, neither the state of Louisiana nor the federal government has joined this lawsuit.
- If Planned Parenthood were forced to pay the $1.8 billion sought in damages, it would have devastating consequences for patients, deepening the health care crisis in Texas and Louisiana.
- On Jan. 6, 2023, Planned Parenthood Federation of America and the Texas affiliates filed motions for summary judgment, asking the court to rule in their favor in the baseless lawsuit.
- Ending FDA approval of mifepristone (Alliance for Hippocratic Medicine et al v. U.S. Food and Drug Administration et al):
- Updated Jan. 29, 2023: Anti-abortion activists and organizations sued the FDA in the Northern District of Texas to try to end mifepristone’s approval for abortion. Mifepristone has been used for decades by millions of people as a safe, effective way to end a pregnancy.
- This case was brought by Alliance Defending Freedom, a Southern Poverty Law Center-designated hate group.
- Parental consent for birth control (Deanda v. Becerra):
- This case has the potential to change how young people get access to birth control. Judge Kacsmaryk recently ruled that it violates Texas state law and the U.S. Constitution for minors to get their birth control through the Title X program without parental consent.
- This case was brought by Jonathan Mitchell, the architect of S.B. 8, Texas’s six-week abortion ban that included a bounty hunter provision.
- On February 16, HHS appealed the ruling.
- ACA Section 1557–Nondiscrimination in Health Care (Neese v. Becerra):
- This is a class action lawsuit in which the court ruled in November 2022 that restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care providers solely on the basis of their sex assigned at birth or their gender identity does not violate the Affordable Care Act’s nondiscrimination provision (known as Section 1557).
- This case was brought by Jonathan Mitchell, architect of S.B. 8, and America First Legal.
(Added Feb. 8, 2023) Case before Judge David Counts, Western District of Texas:
- Challenging HHS guidance to pharmacies regarding provision of reproductive health medications (Texas v. Becerra)
- The state of Texas has sued — in another single-judge division — to block July 2002 HHS guidance that pharmacies that must comply with federal anti-discrimination law in dispensing reproductive health medications.
Case before Judge Reed O’Connor, Northern District of Texas:
- ACA / PrEP (Braidwood v. HHS):
- Activists have sued HHS in the Northern District of Texas to block the ACA requirement that insurance plans cover certain preventive services without cost sharing, including contraception, immunizations, PrEP, and other critical services. The federal district court has already held that one aspect of the mandate is unconstitutional and that the plaintiff’s rights are violated by having to cover PrEP in its health insurance plan.
- This case was also brought by Jonathan Mitchell.
Case before Judge Mark Pittman, Northern District of Texas:
- Prescribing contraception at CVS (Strader v. CVS Health Corp):
- A nurse practitioner formerly employed in a Texas CVS has sued, claiming she was fired for refusing to prescribe contraception to patients.
- This case was brought by First Liberty Institute.
Case before Judge Alan Albright, Western District of Texas:
- VA providing abortions to save life/health of person (Carter v. McDonough):
- A nurse practitioner at a VA facility in Texas filed a federal lawsuit challenging the VA's new Interim Final Rule (IFR) through which the VA will provide abortion counseling and abortions where the life or health of the person is threatened or the pregnancy is the result of rape or incest. The nurse practitioner plaintiff argues that the IFR violates her rights under the First Amendment and the federal Religious Freedom Restoration Act because she is a devout Christian who believes that she cannot provide abortions or otherwise work at a facility that provides abortions.
- This case was brought by First Liberty Institute.
Case before Sixth Circuit Court of Appeals:
- Reinstating Trump-era Title X gag rule (Ohio v. Becerra):
- Brought by the Ohio Attorney General and 11 other state attorneys general, this lawsuit seeks to reinstate the Trump administration's domestic gag rule in the Title X family planning program, which would deny pregnant patients critical information and could dramatically limit the ability of sexual and reproductive health care providers to participate in the program.
Case before Fifth Circuit Court of Appeals:
- Emergency Medical Treatment & Labor Act (EMTALA) (Texas v. Becerra)
- Texas: Texas filed suit in the Northern District of Texas challenging the Biden administration’s July 2022 guidance that stated that if a pregnant patient presented with an emergency under EMTALA and if abortion was the necessary stabilizing treatment for that patient, the physician must provide that abortion, even if the abortion was precluded by state law. A federal district court judge enjoined the Biden guidance, and banned the administration from enforcing its interpretation of EMTALA in the State of Texas. That injunction is on appeal to the Fifth Circuit.
Case before the District of Idaho:
- Emergency Medical Treatment & Labor Act (US v. Idaho)
- Idaho: The Biden administration has sued Idaho to enforce the federal EMTALA law, and obtained a preliminary injunction allowing Idahoans to receive abortions in certain emergency situations, even while the state’s total abortion ban is in effect.
Case before the Middle District of North Carolina:
- Challenging medication abortion restrictions based on federal preemption (Bryant v. Stein)
- Dr. Amy Bryant, a North Carolina abortion provider, filed a federal court challenge to the state’s onerous and medically unnecessary restrictions on mifepristone, arguing that they are preempted by federal law and conflict with FDA regulations.
Case before Southern District of West Virginia:
- Challenging West Virginia abortion ban and restrictions based on federal preemption (GenBioPro, Inc. v. Sorsaia et al)
- GenBioPro, manufacturer of generic mifepristone, is suing to invalidate West Virginia’s abortion ban and restrictions, also arguing that those statutes, as they apply to mifepristone, are preempted by federal law.
State court challenges to abortion bans involving Planned Parenthood affiliates:
- Arizona: On Dec. 30, 2022, the Arizona Court of Appeals ruled that the state’s 1864 near-total ban on abortion cannot be enforced against licensed physicians who provide abortions in compliance with the regulatory scheme enacted over the last five decades — including the most-recently enacted 15-week ban. The Court of Appeals agreed with Planned Parenthood Arizona that physicians must be allowed to continue providing abortions that are lawful under these statutes because the 1864 ban cannot be allowed to implicitly repeal five decades of Arizona’s laws on abortion.
- Florida: Abortion providers — including Planned Parenthood of Southwest and Central Florida and Planned Parenthood of South, East and North Florida — challenged the state’s 15-week abortion ban on June 1, 2022 arguing that it violates individual privacy rights protected by the Florida Constitution. Abortion providers asked the Florida Supreme Court to review the case and block the law after lower courts repeatedly closed off meaningful legal avenues to do so. On Jan. 23, 2023, the Florida Supreme Court accepted providers’ request to hear the case, but declined to block the law while the litigation continues, and the ban remains in effect.
- Georgia: In July 2022, abortion providers, including Planned Parenthood Southeast, filed a state court challenge to Georgia’s ban on abortion after approximately six weeks of pregnancy. The suit argues that (1) the ban was void from the start under Georgia judicial precedent because it clearly violated federal constitutional precedent when it was enacted in 2019, and a subsequent change in federal law cannot revive it; and (2) that it violates the right to privacy guaranteed by the Georgia Constitution. The ban is currently back in effect after the Georgia Supreme Court granted an emergency stay of a lower court’s injunction on Nov. 23, 2022; litigation in the Georgia Supreme Court continues.
- Idaho: On Jan. 5, 2023, the Idaho Supreme Court ruled that the state constitution does not protect the right to abortion, upholding three state abortion bans including a near-total trigger ban and a law allowing anyone to sue those who help someone obtain an abortion that took effect in August 2022. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky and Dr. Caitlin Gustafson originally challenged Idaho’s trigger ban on June 27, 2022, arguing that it violated the right to privacy and equal protection under the Idaho Constitution. The court rejected those arguments in its ruling.
- Indiana: Abortion providers including Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky filed a state court challenge to Indiana’s total abortion ban on Aug. 31, 2022, arguing that it violates the Indiana Constitution’s right to privacy and equal privileges protections. The ban is currently blocked by a preliminary injunction while litigation continues, and the Indiana Supreme Court will decide the merits of the state’s appeal. The court heard oral arguments on Jan. 19, 2023.
- Iowa: On Dec. 12, 2022, an Iowa state trial court denied the state’s motion to lift an injunction blocking the state's six-week ban, allowing abortions to remain legal in the state. The ban has been blocked since 2019, but the state filed a motion to lift the injunction following the U.S. Supreme Court’s decision in Dobbs. The state has already appealed the trial court's decision.
- Kentucky: Abortion providers including Planned Parenthood Northwest, Hawaiʻi, Alaska, Indiana, Kentucky filed a state court challenge to Kentucky’s two abortion bans on June 27, 2022, arguing that they violate the right to privacy and bodily autonomy protected by the Kentucky Constitution. The ban is currently in effect while litigation continues after an appeals court stayed the trial court’s temporary injunction and the Kentucky Supreme Court denied providers’ request for emergency relief in August. The court then heard oral arguments in the case on Nov. 15, 2022.
- Michigan: In April 2022, Planned Parenthood of Michigan and abortion provider (and PPMI Chief Medical Officer) Dr. Sarah Wallett filed a state court challenge to Michigan’s 1931 pre-Roe felony abortion ban, arguing that it violates the rights to liberty, privacy, bodily integrity, and equal protection guaranteed by the Michigan Constitution and state civil rights laws. The ban has been blocked since September 2022 when the Michigan Court of Claims issued a permanent injunction. On Dec. 14, 2022, the Court of Appeals granted the state legislature’s motion to withdraw their initial appeal of the ruling, meaning the permanent injunction against the pre-Roe ban is final. Note: In November 2022, Michigan voters approved Proposition 3, which explicitly enshrines reproductive freedom — including the right to abortion — in the Michigan Constitution. That amendment took effect as Article 1, Section 28 of the state constitution on Dec. 23, 2022.
- Ohio: Abortion providers — including Planned Parenthood Greater Ohio and Planned Parenthood Southwest Ohio — challenged the state’s ban on abortion after approximately six weeks of pregnancy on the grounds that it violates the Ohio Constitution’s broad protections for individual liberties. The ban is currently blocked by a preliminary injunction. On Dec. 16, 2022, the First District Court of Appeals denied the state’s request for the court to review an appeal of the preliminary injunction. Abortion remains legal in Ohio while litigation continues.
- Oklahoma: Abortion providers, including Planned Parenthood Great Plains, challenged two total abortion bans — a pre-Roe criminal ban from 1910 and another total ban passed in 2022— in the Oklahoma Supreme Court in July 2022, arguing that the overlapping and contradictory laws violate the state constitution. Both bans are in effect while the parties await a ruling from the Oklahoma Supreme Court.
- South Carolina (Updated Feb. 8, 2023): On Jan. 5, 2023, the South Carolina Supreme Court permanently struck down S.B. 1, South Carolina’s ban on abortion after approximately six weeks of pregnancy. Planned Parenthood South Atlantic, Greenville Women’s Clinic, and two physician plaintiffs originally filed a state court challenge to S.B. 1 on July 14, 2022, after it was allowed to take effect following the fall of Roe v. Wade. The South Carolina Supreme Court ruled that the ban cannot be enforced because it violates the right to privacy in the state constitution. And on Feb. 8, 2023, the Court denied the state’s requests to rehear the case, meaning its ruling blocking the law is final.
- Utah: Planned Parenthood Association of Utah challenged the state’s trigger ban the day after Roe v. Wade was overturned, arguing that the total ban violates the Utah Constitution which protects pregnant Utahns’ rights to determine when and whether to have a family and to determine what happens with their own bodies. The ban has been blocked by the trial court since June 27, 2022 while the litigation has continued.
There are also active state court challenges to total abortion bans in Louisiana, North Dakota, Wisconsin, and Wyoming (Planned Parenthood is not involved in these cases).