Lawsuits Filed to Restore Women’s Reproductive Rights
Like zombies, states’ appeals never die
February 1, 2024 7 minutes read
South Carolina, Texas, and other states have consistently targeted Planned Parenthood clinics with lawsuits that fail and then are appealed repeatedly.
For example, the state of Texas is suing Planned Parenthood Federation of America and three Planned Parenthood affiliates, alleging they violated the False Claims Act. In a $1.8 billion lawsuit, the plaintiffs claimed the organization overbilled by $17 million — an allegation that Planned Parenthood’s general counsel Susan Manning called baseless in a statement on the lawsuit. If Texas succeeds, the case could force Planned Parenthood to close nationwide.1,2
Planned Parenthood is accused of continuing to bill Texas after the state tried to kick the organization off the Medicaid insurance program. Planned Parenthood says the billing was not illegal because court orders temporarily paused their termination from Medicaid. U.S. District Judge Matthew Kacsmaryk declined to rule on the case and scheduled a trial for April 2024.2
South Carolina state officials also attempted to stop patients on Medicaid from seeking contraceptive care and reproductive health procedures at Planned Parenthood. Although the state repeatedly lost the case in court, South Carolina will not stop the effort, says M. Malissa Burnette, Esq., a partner and co-founder of Burnette Shutt McDaniel of Columbia, SC.
“The state is paying legal fees constantly and has appealed decisions twice to the 4th Circuit and tried to get the U.S. Supreme Court to look at the case — and the Supreme Court declined,” Burnette says. “Even though Medicaid funds by law can’t pay for abortions, they don’t want people to be in a Planned Parenthood clinic for any reason.”
Burnette represents Planned Parenthood in that case and has represented South Carolina’s three abortion providers in challenges to the state’s six-week abortion ban. The initial challenge succeeded when the state’s supreme court struck down the abortion ban because of the state’s constitutional right to privacy.
“One of the main arguments was that at six weeks, a pregnant person often does not know they’re pregnant, and has not had a reasonable amount of time to make a decision if they are pregnant,” Burnette explains. “Kaye Hearn was one of the justices; she was in my law school class.”
Justice Hearn left the court, which has an age limit for justices. After she was replaced by a male justice, South Carolina passed a new six-week ban in May 2023, tweaking the original ban but changing very little.
“We challenged that and got a preliminary injunction,” she says.
That case went to the state’s supreme court, which accepted the case. The new justice, Gary Hill, joined the court in hearing the case in August 2023, and the all-male state Supreme Court reversed course and found that the six-week abortion ban was constitutional.
“They held that the state’s interest in fetal life outweighed the pregnant person’s bodily autonomy,” Burnette says. “I remember what it was like before Roe, when girls got pregnant and tried to perform their own abortions and got injured. When Roe came about, it was a wonderful thing for women. Who would have thought it’d ever be repealed?”
Legal Peril
South Carolina had been one of the last Southern states with abortion access in 2023. However, that stopped for all but a small number of cases after this court decision.
“There are very narrow exceptions to the law, and one is the life and physical health of the mother,” Burnette says. “It must be a substantial and irreversible impairment to major bodily function, and it cannot be a psychological condition.”
Physicians have to risk the loss of their medical license, a felony conviction of two years in prison, or a $10,000 fine or both if they perform an abortion and the legal system disagrees with their assessment of the patient’s risk, Burnette says.
“The other exceptions are for rape or incest. They get to have abortions up to 12 weeks — but only if the physician reports the assault and the survivor’s name within 24 hours of the abortion and tells the survivor about it,” she explains. “If it’s the father committing incest, you can imagine what’s going to happen to the surviving child who is pregnant. She won’t have the abortion, or something awful will happen when she gets back home.”
If physicians do not report it to law enforcement, they face the same abortion ban penalties. “There are so many scenarios you can imagine where fear is going to drive a person’s decisions, including healthcare providers, when they’re afraid they’re going to make a mistake where they fear a miscarriage is an intentional abortion, or when a medical procedure might cause an abortion or miscarriage,” Burnette says. “It turns the healthcare system upside down when there’s this fear of a felony hanging over your head. It’s a disservice to healthcare workers and families.”
The scenario Burnette describes has already played out in Texas, where abortion has been effectively banned for more than two years, and in other states with extreme abortion bans. These have resulted in several lawsuits in which women who experienced dangerous pregnancy crises were denied abortion care to save their lives and/or their fertility.
In one such case, more than 20 women filed a lawsuit against the state of Texas for endangering pregnant women’s lives. Their stories varied, but all had either started to have a miscarriage before the fetus would be viable or they had pregnancies with fetal anomalies. Continuing to carry the pregnancies risked their health and lives.3
One woman in the Texas lawsuit is nurse Cristina Nunez. At age 36, she has hypertension and diabetes, and started dialysis several years ago. Nunez was shocked when she was pregnant in May 2023, and her health quickly worsened.
Nunez’s attorney, Kylee Sunderlin, said physicians told Nunez that if she continued the pregnancy, it was extremely likely that Nunez, the baby, or both would die. Nunez decided to end her pregnancy, but could not do that in Texas, where she lived.4
Although Nunez was prepared to travel to New Mexico for an abortion, her health worsened, and she needed dialysis every day. Nunez developed painful blood clots and did not have time to travel out of state. She visited the emergency department because thrombosis had turned her limbs purple and then black. Even then, the hospital staff would not give her an abortion.4
Nunez could not receive life-saving care until she called a helpline by If/When/How that provides free and confidential legal services. Sunderlin represented Nunez and helped her get to a different hospital to obtain the abortion.2
Changing Legal Landscape
Attorneys representing reproductive rights organizations and patients face a challenging and ever-changing legal landscape. As Burnette experienced with the challenge to South Carolina’s six-week abortion ban, one change on a higher court can completely turn around a case.
“These cases take a lot of our time away from other cases, and we happily contribute our time because it’s so very important,” Burnette says. “The problem with having the change in the justices really manifested itself in this second decision in 2023. The law was barely changed — it was still the six-week ban, and that was the crux of the law.”
Since Dobbs threw decisions about abortion care back to states, there has been a patchwork of rights or lack of rights, Burnette says. “In South Carolina, we were hopeful because South Carolina has the right to privacy in its constitution,” she adds. “But it came down to how the wording in our constitution was to be interpreted, and most states don’t have that right in their constitutions.”
This has led to a patchwork of legal decisions across states, including extreme and frightening decisions in places like Texas. “I expect people will do anything when they’re desperate, but our legislators are trying to close every loophole,” Burnette says. “Some are pushing for a total ban and will go after every type of contraceptive they can.”
Burnette has listened to what South Carolina legislators say at committee meetings and is worried their extremist views will prevail. “They’re not going to stop with the abortion ban,” she says. “Some will never be satisfied until they have a total ban [on contraception].”
Still, reproductive health providers should know that there are local attorneys like Burnette who are fighting for them and their patients’ rights.
As has happened with pro-abortion rights votes in other red states, polls show that South Carolinians are in favor of bodily autonomy, Burnette says. The state does not allow a citizens’ petition like what has happened in Ohio and Florida. Legislators must authorize any changes to the law.
“They won’t do it because they know they’ll lose,” Burnette notes. “They know people support reproductive rights and bodily autonomy.”
With far-right legislators who are protected by heavily gerrymandered districts, there is little near-term hope for a change in the people making the laws in states like South Carolina.
“I do not understand the atmosphere of cruelty and control that is so pervasive in South Carolina’s government,” Burnette says. “It’s frightening, and I fear for my daughter and her family and my grandson and his generation being able to care for their families.”
REFERENCES
- Planned Parenthood. The facts on United States ex rel. Doe v. Planned Parenthood Federation of America, the meritless case that could shut down Planned Parenthood. Aug. 4, 2023.
- Pierson B, Raymond N. Planned Parenthood must face trial over Texas Medicaid fraud claims. Reuters. Oct. 24, 2023.
- Zurawski v. State of Texas. March 6, 2023.
- McCammon S, Simmons-Duffin S. Texas Supreme Court to hear case on state abortion laws and pregnancy complications. NPR. Nov. 26, 2023.
South Carolina, Texas, and other states have consistently targeted Planned Parenthood clinics with lawsuits that fail and then are appealed repeatedly.
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