Thursday, April 20, 2017
The Supreme Court's decision in Whole Woman's Health is having a impact on state targeted regulations against abortion providers. In Whole Woman's Health, the Supreme Court struck down two parts of a Texas law that required that facilities providing abortions meet the same requirements as ambulatory surgical centers (ASC) and that physicians providing abortions have admitting privileges in nearby hospitals.
On Wednesday, a federal judge in Missouri granted a preliminary injunction against state ASC and admitting privileges requirements. Missouri currently only has one abortion provider. Following the judge's decision, Planned Parenthood announced plans to restore abortion services at four additional other locations in the state.
Last week, the Tennessee Attorney General announced that the state will cease enforcing admitting privilege and ASC requirements. The statement was issued in response to a lawsuit brought by three Tennessee clinics in 2015. A federal court stayed proceedings in the case to await the Supreme Court's decision in Whole Woman's Health. However, the state will continue to defend a third provision passed by the Tennessee legislature which requires women to wait 48 hours after obtaining counseling before obtaining an abortion. The state legislature is currently considering two new anti-choice bills despite the fact that the Attorney General has issued an opinion finding the bills "suspect" and "constitutionally infirm."
Tuesday, April 18, 2017
Professor Linda C. Fentiman has just published a new book, Blaming Mothers: American Law and the Risks to Children's Health. According to the publisher:
In Blaming Mothers, Professor Fentiman explores how mothers became legal targets. She explains the psychological processes we use to confront tragic events and the unconscious race, class, and gender biases that affect our perceptions and influence the decisions of prosecutors, judges, and jurors. Fentiman examines legal actions taken against pregnant women in the name of “fetal protection” including court ordered C-sections and maintaining brain-dead pregnant women on life support to gestate a fetus, as well as charges brought against mothers who fail to protect their children from an abusive male partner. She considers the claims of physicians and policymakers that refusing to breastfeed is risky to children’s health. And she explores the legal treatment of lead-poisoned children, in which landlords and lead paint manufacturers are not held responsible for exposing children to high levels of lead, while mothers are blamed for their children’s injuries.
An excerpt from the book is available on Broadly.
Monday, April 17, 2017
Business Insider (April 12, 2017): Grandma activists fight for the reproductive rights of young women, by Caroline Praderio:
Four years ago, Grandmas for Reproductive Rights or GRR! was founded by a group of women in Maine to protect access to reproductive health services. GRR! adds an important perspective to their work:
most members recall a time when abortions were illegal — sometimes deadly — and contraception was difficult to access. Before 1972, for example, it was illegal for unmarried American women to possess birth control.
"I think that age has something to do with the impact that we have," [said Judy Kahrl]. "Because we've lived through it — we've seen what happened in the past."
Since 2013, the grandmas have met with legislators, testified at legislative hearings, marched in protests, and one member ended up running for office. Jay McCreight, an original member of GRR!, is now serving her second term in the Maine House of Representatives and successfully introduced a bill giving low income Maine citizens access to free reproductive health care.
The grandmas are inspiring others. Following a post on the Facebook group Pantsuits Nation, the group has received 16,000 likes and multiple requests to join the group. Now GRR! has become a 501(c)(4) organization and is looking to expand in other states.
Friday, April 14, 2017
New York Times (Apr. 14, 2017): Voiding Obama Rule, Trump Signs Law Taking Aim at Planned Parenthood, by Julie Hirschfeld Davis:
At the end of his term, President Obama, responding to a spate of red state initiatives to defund Planned Parenthood, promulgated a regulation banning states from withholding federal funding for family planning only if the provider is unable to provide family planning services. The mere fact that a family planning provider performed abortions was not reason enough for withholding funds. A new law, the tiebreaker vote on which was cast by Vice-President Mike Pence, guts this late-term regulation. Under the law, states may cut the federal funding of groups that perform abortions. The law takes a step further the already existing ban on using federal government money for abortion except in cases of where a woman's life is at stake or the pregnancy was the result of rape or incest.
President Trump, who signed the law yesterday, is an opponent of abortion. Early in his term he reinstated a regulation blocking federal funding for any nongovernmental organizations worldwide that provide abortion counseling.
Anti-abortion conservatives have been cheered by Trump's actions and foresee further legislative activity that will withdraw public support of family planning that includes abortion.
Wednesday, April 12, 2017
by Richard Storrow
In the wake of the confirmation of Justice Neil Gorsuch, two experts have weighed in on the future of the United States Supreme Court. Both Adam Liptak and Lisa Marshall Manheim agree that we will see little difference in the work of the Supreme Court in the short term. After all, Gorsuch is a "one-for-one" "close match" for Justice Antonin Scalia.
Both Liptak and Manheim do predict notable changes in the long term, however. Manheim believes the "realignment of checks and balances" that accompanied Gorsuch's confirmation has strengthened the executive branch's power to appoint. With filibusters and the need for approval by sixty senators out of the way, presidents may feel emboldened to nominate ideologues that appeal to their political supporters. Such nominations, if successful, could polarize the court and upend the "ideological balance" that currently prevails. Yes, perhaps. But Manheim admits that this scenario may depend on whether the president's party has control of the Senate.
Liptak's contribution, noting that party affiliation has become a strong predictor of voting trends for the members of the Supreme Court, speculates on what would have happened had Judge Merrick Garland joined the supreme bench. Chief Justice Roberts would have been ideologically sidelined and Citizens United would have been scheduled for the chopping block. Oh, what might have been. Reminding us that the Court's liberal wing is aging, Liptak believes the arrival of Gorsuch portends a reinvigoration of the projects of the Roberts court: deregulation of campaign finance, rollbacks of voting rights, roll forwards of gun rights and an insistence on race blindness in everything from education to housing.
Neither author mentions that Gorsuch's claimed originalism remains inadequately categorized. As David Dorsen notes in The Washington Post, as a lower court judge, Gorsuch was constrained by Supreme Court precedent, and his writings on euthanasia are not those of an originalist but of a moral philosopher. Only in a 2016 law review article does Gorsuch embrace a vigorous originalism. But the article is the transcript of a speech, which, delivered in the wake of Justice Scalia's death, became mired in encomium. Given the context, the originalism it describes is a caricature without nuance. It fails to grapple with the practicalities or the wider ramifications of being a judge who adheres to a particular brand of originalism. It tells us little about what Gorsuch believes originalism is or how it should be used to address the issues of our day.
Contrary to Dorsen, I would submit that we probably do gain good insight into Gorsuch's brand of originalism from his concurrences and dissents while serving on the 10th Circuit Court of Appeals. It is a narrow originalism capturing Gorsuch's disdain for the administrative state. It focuses squarely on ideas about the separation of powers and how those lines have become blurred with the mushrooming of the fourth branch. But it is not an originalism that seeks to aggrandize power in the elected branches, as was Scalia's. Instead, Gorsuch views the separation of powers as essential to due process and equal protection. See, e.g., Gutierrez-Brizela v. Lynch (10th Cir. 2016). This could be good news for those who worry about what position he will take on questions of affirmative action, immigration and abortion, subjects about which he has not yet said enough.
Thursday, April 6, 2017
New York Times (Apr. 4, 2017): Does Birth Control Cause Depression? by Aaron E. Carroll:
A study published in the Journal of the American Medical Association Psychiatry suggests that hormonal contraceptive use may trigger depression. The study examined all women and adolescent females in Denmark from 2000 through 2014. It found that those who used hormonal contraceptives "had significantly higher risks of also taking an antidepressant." The risks were higher in adolescents than in women and decreased as the subjects aged.
Placed in the context of other studies that have examined hormonal contraceptive use, the study comes up short. It's not a controlled trial and does not even remotely establish causation. It is also easy to criticize it on the basis that "anti-depressant use isn't the best measure of new-onset depression."
Data from other studies appear to contradict the JAMA study: "the data that do exist show that most women don't show any effect from hormonal birth control, or actually had their mood improve. Moreover, "women who have underlying mood disorders were more predisposed to have mood-related side effects." The JAMA introduces intriguing and "newsy" findings into the mix, but is by no means the last word on the subject. The topic of hormonal birth control and mood is best explored in the context of the patient-physician relationship. When viewed up against the fact that birth control is "[o]ne of the biggest American victories of the last decade," the fact that it may contribute to depression may be a risk worth taking.
Friday, March 31, 2017
New York Times (March 30, 2017): Arkansas Bans 'Sex-Selection Abortion, by Christine Hauser:
Arkansas Governor Asa Hutchinson signed a law banning sex-selective abortion this week. The law goes further than prior laws because it requires that doctors investigate women's pregnancy history and ask the woman questions to ensure that the woman is not ending the pregnancy in order to gender select. The law, which is scheduled to go into effect on Jan. 1, 2018, requires doctors to ask a woman if she knows the gender of the fetus she is carrying and if she does, the doctor must tell her it is illegal to chose an abortion based on gender. It is a misdemeanor for doctors to fail to comply with a fine up to $2,500 and civil penalties. Doctors also risk revocation or suspension of their medical license.
According to the Guttmacher Institute, Arkansas is the 8th state to ban sex-selective abortions. The other states are Arizona, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota.
Salon (March 26, 2017): Where do right wingers get all those anti-choice laws? There is literally a book, by Amanda Marcotte:
Each year, Americans United for Life (AUL), incorporated in 1971 to fight the movement to legalize abortion, publishes an annual handbook entitled "Defending Life." The handbook provides model legislation for state lawmakers eager to introduce anti-choice bills. This year, AUL faced a new challenge in figuring out how to respond to the Supreme Court's decision in Whole Woman's Health v. Hellerstedt. The Texas law that the Court struck down in Whole Woman's Health originated in AUL's handbook and was part of AUL's strategy of promoting anti-choice legislation in the guise of protecting women's health.
In its 2017 handbook, AUL appears to be focusing on laws that promote "fetal life interest" or "fetal dignity interest." These initiatives include:
bills requiring women who have abortions or miscarriages to pay for funeral services for the fetus or embryo, bills banning abortion in the case of fetal defects and bills that would make it legal for a woman to sue an abortion doctor for “wrongful death” if she decides, after the fact, that she regrets getting an abortion.
According to Marcotte:
The authors of the 2017 edition of “Defending Life” try to strike a confident tone, but it’s clear from the model legislation itself that anti-choice activists don’t really know what to do in the aftermath of Whole Woman’s Health v. Hellerstedt. Reading the handbook, one gets the sense that if anti-choice activists can’t stop women from getting abortions, they will just try to make the experience as punishing as possible, with waiting periods, fetus funerals and lots of scary, false information.
Friday, March 24, 2017
Business Insider (March 21, 2017): If you care about the future of abortion rights, now is a good time to worry, by Jessie B. Hill:
Although there is no immediate threat to Roe v. Wade, Professor Jessie Hill discusses why supporters of abortion rights should be worried. She writes:
But the real danger may be not so much that things will radically change – it’s that they’ll remain the same. From my vantage point as a constitutional law professor who also litigates reproductive rights cases, the landscape looks about as treacherous as it ever has.
Despite the Supreme Court's decision in Whole Woman's Health v. Hellerstedt last term finding two provisions of a Texas statute unconstitutional, states continue to adopt new restrictions on abortion. In 2016, 18 states adopted 50 new pieces of anti-abortion legislation. While the balancing test applied in Whole Woman's Health the Court allowed the court to take into account that there was no evidence to support the state's claim that it enacted the provisions to protect women's health in determining the benefits and burdens of the law, the test still gives judges a lot of discretion. Prof. Hill warns that "A legal test that requires balancing benefits and burdens leaves a lot of room for a judge to place a thumb on the scale." Also of concern is the deference that Trump's Supreme Court nominee Judge Gorsuch shows to religious rights claims as we increasingly see expansion of these claims to undermine laws that protect women and LGBTI individuals from discrimination.
Finally, Professor Hill notes that while the five judges majority in Whole Woman's Health remains on the Court, "the real turning point will likely come if and when Trump gets to make second nomination the Supreme Court."
Thursday, March 23, 2017
Mississippi Drops Defense of Admitting Privilege Requirement; Litigation on OB/GYN Requirement Continues
Rewire (March 21, 2017): Mississippi Finally Stops Defending Clinic Shutdown Law, by Jessica Mason Pieklo:
Eight months after the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, Mississippi dropped its defense of an admitting privilege requirement that would have required doctors performing abortions to have admitting privileges at nearby hospitals. The provision would have forced the only abortion clinic in Mississippi to close. Following the state's concession that it could not "identify any meaningful distinction" between the law struck down in Whole Woman's Health and the Mississippi admitting privilege requirement, the district court permanently enjoined the law.
However, litigation continues over another Mississippi law that requires that all doctors performing abortions be OB-GYNs. Mississippi is the only state with such a requirement.
Tuesday, March 21, 2017
Huffington Post (March 20, 2017): Women Wore 'Handmaid's Tale' Robes to the Texas Senate, by Catherine Pearson:
On Monday, a group of women arrived at the Texas Senate Chambers wearing red robes and white bonnets as a nod to characters in Margaret Atwood's book the Handmaiden's Tale. The science fiction novel describes a society where women are forced to serve as "breeders" with no rights. The activists sought to draw attention to a series of anti-abortion measures that are currently being considered by the Texas legislature. The proposed legislation includes a bill that would ban a procedure commonly used for second trimester abortions and a bill that would immunize doctors from liability if they lie to patients about detected fetal abnormalities.
Saturday, March 18, 2017
New York Times (Dec. 14, 2016): Abortion Is Found to Have Little Effect on Women’s Mental Health, by Pam Belluck:
A new study comparing women who had abortions with those who were turned away at clinics finds that women who have abortions do not experience more negative psychological effects. This finding is contrary to the familiar lore that women who have abortions experience emotional and psychological trauma and thus need mental health counseling before they undergo the procedure. Such counseling is required in twenty-two states. Conservative state legislatures have used this mythos effectively to pass a number of restrictions on abortion.
The study sought to cure some of the methodological failings of previous studies by comparing two groups of women, both of which seek abortions, rather than comparing women who desire an abortion with women who wish to carry their pregnancies to term. The test subjects were followed up every six months for five years. It turns out that women who seek abortions and are refused suffer more than anyone. They experience more anxiety, lower self-esteem, and less satisfaction than women who are able to obtain an abortion. Luckily, their mental distress is short-lived, whether they successfully seek abortion elsewhere or give birth.
Wednesday, March 15, 2017
Spokesman-Review (Boise) (Jan. 23, 2017): Idaho to Stop Enforcing Telemedicine Abortion Bans, by Kimberlee Kruesi:
Two laws hindering women from obtaining safe abortions have been dismantled in Idaho. The first curtailed the use of telemedicine to assist women choosing medical abortions. Telemedicine allows physicians to consult with their patients remotely. It can be especially useful in delivering medical services in rural areas. The law required a physician to be present when a patient receives abortion-inducing medication. The second law simply forbade physicians from prescribing pregnancy-ending drugs remotely.
Planned Parenthood sued Idaho to dismantle these laws. A settlement entered into between the parties requires Idaho to repeal these laws by 2017 or have them declared unconstitutional in federal court. A federal judge has already ruled that requiring a physician's physical presence imposes an undue burden on women seeking medical abortions with no counterbalancing health benefits. A similar restriction was struck down by the Iowa Supreme Court in 2015.
Tuesday, March 14, 2017
New York Times (Feb. 15, 2017): Human Gene Editing Receives Key Panel's Support, by Amy Harmon:
In a move that some fear heralds the era of designer babies for the very wealthy and that has led other countries to ban germ line genetic editing, a panel of influential American scientists has thrown its support behind inheritable modifications of human embryos. Although touted as a way to cure disease, many see the potential for this science to be used for more nefarious motives--enhancing mental or physical endowments, for example--that smack of eugenics.
The research is explicitly aimed at allowing parents who both carry deadly recessive traits to have children who are not afflicted by such diseases as Tay-Sachs, beta thalassemia, and Huntington's. The report calls for prohibitions on using the technology for enhancements, but it does not have any legal effect. Federal law, though, currently prohibits the use of "federal money to support research that results in genetically modified offspring."
The issue arises on the heels of technology--Crispr-Cas9--that brings germ-line genetic editing out of the realm of science fiction. The tool allows researchers to insert and delete genes more or less precisely, although the possibility remains that some DNA will be snipped off inadvertently. They will experiment first on patients with cancer and blindness using genetic alterations that are not inheritable.
Monday, March 13, 2017
New York Times (March 12, 2017), Are Your Sperm in Trouble?, by Nicholas Kristof:
Sperm is decreasing in quality and testicular cancer is on the rise. Studies show a rapid decrease in sperm quality from 2001 to 2015. Some suggest that endocrine disruptors--chemicals found in plastics are to blame. In one study of the effect of endocrine disruptors on fish, the males became intersex and incapable of reproducing.
Human reproduction might be threatened by these developments, but scientists disagree about the scale of the problem. Some believe we are are crossing the line where the question "can we sustain ourselves?" becomes relevant. After all, endocrine disruptors mimic hormones; as such they possess the power to interfere with the biological process of becoming male in the womb.
Some have taken to avoiding plastics, including the ubiquitous sales receipts produced by thermal printers. But individual action is probably not enough. The endocrine disruptor lobby in Congress mirrors the power of Big Tobacco before the regulation of smoking became a foregone conclusion.
Thursday, March 2, 2017
Washington Post (March 2, 2017): Nations pledge millions after US pulls family planning funds, by Raf Casert:
In response to the Trump administration's reinstatement and expansion of the Global Gag Rule, on March 2 nations met in Brussels to determine how to fill the funding gap. Although the conference was convened at the last minute, representatives from over 50 countries attended and funding pledges approached 100 million dollars.
The Global Gag Rule adopted by the Trump administration earlier this year prohibits organizations from receiving US foreign aid funding if they counsel or discuss abortion with patients or advocate for changes in abortion law. Prior versions of the Global Gag Rule only applied to US family planning funding. The new version includes all American global health assistance. It is estimated that the rule could result in the withholding of half a billion dollars of funding a year.
World leaders at the conference expressed concern that Trump's policies will severely undermine access to family planning in developing nations and will actually increase abortions because of the increase in unwanted pregnancies.
Friday, February 24, 2017
National Catholic Reporter (Feb. 21, 2017): El Salvador's proposal to increase jail sentences of women seeking abortions must be rejected, by Natasha Reifenberg, Alexis Doyle and Aly Cox:
Earlier this week El Salvador began debating a proposal that would increase the punishment that women face for having an abortion to 30 to 50 years. El Salvador is one a few countries that both criminalizes and actively prosecutes women who have had, or who are suspected of having, an abortion. Current criminal penalties for women who have abortions are two to eight years, although many women in El Salvador are serving much longer sentences after being accused of murder following miscarriages or stillbirths.
Voto Catolico, a group "committed to increasing participation of Salvadorian Catholics" in politics praised the effort which would place El Salvador "at the forefront of the most pro-life legislation in the entire world." But not all pro-life Catholics agree. This opinion piece in the National Catholic Reporter argues that "drastically increasing the sentencing of women who have sought abortions is neither pro-life nor affirmative of Catholic values." The authors note that
the persons most likely to face actual prosecution under this law are poor women facing crisis pregnancies, which directly contests the church's preferential option for the poor and only serves to further marginalize poor women facing crisis pregnancies receiving care in public hospitals. A truly pro-life society would seek to support and empower impoverished women through increased counseling, education, social services, proper prenatal care, post-abortive healing resources, and support of strong families and supportive fathers.
Although maintaining that abortion is a sin, the authors argue that "[a] law that could incarcerate women who seek abortions for 50 years is not reflective of the church's teachings on mercy and forgiveness and only succeeds in eclipsing everything that has been said in light of the Jubilee Year of Mercy." Pope Francis declared 2016, Jubilee Year of Mercy and emphasized that women who have had abortions and have repented should be forgiven and not punished.
Thursday, February 23, 2017
Washington Post (February 18, 2017): Norma McCorvey, Jane Roe of Roe v. Wade decisions legalizing abortion nationwide dies at 19, by Emily Langer:
Last Saturday, Norma McCorvey who was plaintiff "Jane Roe" in the 1973 case Roe v. Wade died at age 69. Roe v. Wade was a landmark in American jurisprudence and is widely quoted in reproductive rights cases around the world. While the case is widely regarded as a success by reproductive rights activists, McCorvey's life and relationship with the pro-choice movement has been much more complicated.
According to the most sympathetic tellings of her story, she was a victim of abuse, financial hardship, drug and alcohol addiction, and personal frailty. For much of her life, she subsisted at the margins of society, making ends meet, according to various accounts, as a bartender, a maid, a roller-skating carhop and a house painter. She found a measure of stability with a lesbian partner, Connie Gonzalez, but even that relationship reportedly ended in bitterness after 35 years.
In 1995, she converted to Evangelical Christianity and become an anti-abortion activist. According to Emily Langer
But neither did Ms. McCorvey find a comfortable home among conservatives in the antiabortion movement, many of whom regarded lesbianism as immoral.
“Neither side was ever willing to accept her for who she was,” the historian David J. Garrow, a Pulitzer Prize-winning biographer and the author of “Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade,” said in an interview.
Wednesday, February 22, 2017
New York Times (Feb. 21, 2017): Judge Blocks Medicaid Cuts to Planned Parenthood in Texas, by Christopher Mele:
On Tuesday, a federal judge issued a preliminary injunction preventing Texas from defunding Planned Parenthood finding that the state failed to present credible evidence that Planned Parenthood violated medical or ethical standards. The judge's decision was based on a three day hearing last January.
Federal courts have enjoined similar state attempts to defund Planned Parenthood in Arkansas, Alabama, Kansas, Mississippi, and Louisiana. Planned Parenthood operates 30 medical centers Texas that serve about 12,500 Medicaid patients. The Texas law would have prohibited Planned Parenthood from receiving Medicaid reimbursement for services such as screening and treatment of breast and cervical cancer, contraception counseling, testing and treatment for sexually transmitted diseases and primary health care services.
Texas Attorney General Ken Paxton said that he will appeal the injunction.
Tuesday, February 21, 2017
Rewire (Feb. 16, 2017): GOP Begins Shredding Family Planning Safeguards, by Christine Grimaldi:
Using the Congressional Review Act, Republican law makers are working to undo regulations adopted during the Obama administration. Last week the House of Representatives voted to overturn a rule adopted by the Obama Administration that prohibits discrimination against providers of Title X services. If the Senate agrees, their "joint resolution of disapproval" will overturn the rule if President Trump signs it.
Title X is a federal program that provides funding for family planning for low-income or uninsured individuals at reduced or no cost. The rule at issue was adopted by the Department of Health and Human Services in December 2016. The rule sought to clarify that existing law prohibits states from barring reproductive health care providers from receiving Title X funds if they also provide abortion care. The rule was designed to address the recent trend of state laws penalizing reproductive health providers that also provide abortion care by making them ineligible for government funding. In particular the laws target Planned Parenthood which provides services for about a third of the recipients of Title X services.
Republicans assert that overturning the rule will not decrease Title X funding but will allow states to redirect funds to other service providers. However, according to a Rewire analysis, other health care providers are not prepared to fill the gap if Planned Parenthood loses funding.
Assuming that President Trump will sign the measure, overturning the Obama Administration rule will require a simple majority of the Senate - 51 senators. If there is a tie, Vice-President Pence will cast the deciding vote.