Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Thursday, August 14, 2014

Anti-Choice Advocates Track License Plates of Cars Parked at Clinics

Houston Chronicle: Anti-abortion activists adopt a new tactic: tracking license plates, by Brian M. Rosenthal:

Advocates say tactic is legitimate; critics contend that it is intimidation

On nearly every weekday morning between late 2010 and this spring, Eileen Romano stood outside a Beaumont abortion clinic to do what she could to fight a procedure she saw as morally wrong.

Unlike traditional so-called sidewalk advocates, however, Romano did not simply try to talk the arriving women out of having their abortions. She also sought to get the clinic closed with a tactic that is becoming increasingly common in the Texas anti-abortion community: tracking license plates.

Romano wrote down the numbers on the cars that parked outside the facility, checking to ensure the plates showed up twice - for a pre-abortion consultation required by state law and the procedure itself. If a car only came once, she said, it was a sign the doctor had done the abortion without a consultation, and the 63-year-old activist made a note to potentially report to state regulators. . . .

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I don't think the tactic of tracking license plate numbers can accurately be described as "new," but this purported rationale sounds ridiculously far-fetched: What if the driver was not there to obtain an abortion?  What if a patient came to the clinic a different way the second time?

-CEB

August 14, 2014 in Anti-Choice Movement, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Texas Law Could Force Women to Seek Abortions in Mexico

Fox News Latino: Texas Anti-Abortion Law Could Force Women Across The Border For Procedure:

Crossing borders is a part of life in El Paso in far West Texas, where people may walk into Mexico to visit family or commute to New Mexico for work. But getting an abortion doesn't require leaving town.

That could change if a federal judge upholds new Texas rules that would ban abortions at 18 clinics starting Sept. 1, including only one that offers the procedure in El Paso, where one of the toughest anti-abortion laws in the U.S. has come under particular scrutiny at a trial ending Wednesday in Austin. . . .

August 12, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

Iran's Parliament Votes to Ban Permanent Forms of Contraception

The Guardian: Iran bans permanent contraception to boost population growth

Parliament prohibits vasectomies and other lasting birth control measures after Ayatollah Ali Khamenei calls for more babies

Iran's parliament has voted to ban permanent forms of contraception, the state news agency IRNA reported, endorsing the supreme leaderAyatollah Ali Khamenei's call for more babies to be born.

The bill, banning vasectomies and similar procedures in women, is parliament's response to a decree Khamenei issued in May to increase the population to "strengthen national identity" and counter "undesirable aspects of western lifestyles".

Doctors who violate the ban will be punished, the IRNA reported. . . .

August 11, 2014 in Contraception, International, Sterilization | Permalink | Comments (0) | TrackBack (0)

New York Times Editorial on Alabama Admitting Privileges Law Ruling

The New York Times editorial:  A Judge Rules for Alabama Women on Abortion:

In large parts of the country, women’s access to safe and legal abortion care is increasingly coming to depend on the willingness of judges to rigorously examine and reject new (and medically unnecessary) restrictions imposed by Republican legislatures.

In just that sort of searching review, a federal judge last week struck down as unconstitutional an Alabama law requiring doctors at abortion clinics to have admitting privileges at a local hospital. The requirement — advertised, falsely, as necessary to protect women’s health — is one of the main strategies being deployed nationally by opponents of abortion rights to shrink the already inadequate number of abortion providers. . . .

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See my analysis of Judge Thompson's opinion here.  I also argued for the need for closer scrutiny of states' fact-based justifications for abortion restrictions in this short essay for the Harvard Law Review Forum.

-CEB

August 11, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Among TRAP Laws, Admitting Privileges Requirements Prove Especially Potent Weapon

The Washington Post: Admitting-privileges laws have created high hurdle for abortion providers to clear, by Sandhya Somashekhar:

Among the raft of abortion restrictions passed by states in the past few years, one did not initially gain much notice — a requirement that doctors performing abortions obtain admitting privileges at a local hospital.

But the measure, which 11 states have passed in some form, has proved an especially high hurdle for abortion providers to clear and a potent tool for antiabortion activists seeking to shut down abortion clinics. . . .

August 11, 2014 in Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Sunday, August 10, 2014

Colorado Free Birth Control Program Dramatically Reduces Teen Pregnancy Rates

BBC News: Colorado birth control scheme causes drop in teen pregnancy, by Aleem Maqbool:

A Colorado programme that offers free birth control to teenagers has dramatically reduced the rate of teenage pregnancy. But the nature of the scheme's funding - a large anonymous donation - leaves it unclear whether it could work on a broader scale.

Dianzu Mosqueda Salinas is a young woman working at a family planning centre in the Colorado town of Boulder.

In 2010, she had walked into the very same centre as a nervous teenager, curious about birth control options. . . .

August 10, 2014 in Contraception, State and Local News, Teenagers and Children | Permalink | Comments (0) | TrackBack (0)

NPR Interviews Author of "Dirty Work," a Novel About an Abortion Provider

NPR:  In 'Dirty Work,' A Doctor Turns To Fiction To Talk About Abortion, by Lourdes Garcia-Navarro:

All surgeons must pick the organ they'll spend their career protecting, Gabriel Weston writes in her new novel, Dirty Work. And as Nancy, the obstetrician-gynecologist at the center of the book, explains, "We gynecologists have the womb to look after. ... And whichever specialty we choose, each of us has to do something ruthless to keep our patient safe: We have to forget about the human significance of the organ we're operating on." . . .

Weston, who is also an ear, nose and throat surgeon, joins NPR's Lourdes Garcia-Navarro to discuss the book. . . .

August 10, 2014 in Abortion, Books | Permalink | Comments (0) | TrackBack (0)

Saturday, August 9, 2014

New Mexico Clinic at Issue in Legal Fight over Texas Abortion Law

The New York Times: Out-of-State Clinic Is Central in Texas Abortion Law Fight, by Manny Fernandez:

Of all the clinics and facilities at the center of a federal lawsuit challenging Texas’ sweeping abortion law passed last year, one has stuck out.

It is not in Texas, but about a mile across the state line in Santa Teresa, N.M. Its role in the case gets to the heart of the legal questions swirling around the trial here this week. . . .

August 9, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2014

Anti-Choice Movement's Tactics Don't Include Persuading Women

The Guardian: Welcome to the beginning of the end of the anti-abortion movement, by Jessica Valenti:

Trying to block women’s access to abortion is a last-resort option for a stuck movement – and a weak spot that pro-choicers should hammer on

The anti-choice movement has worked hard to convince people that it cares about women and what they want. Its (public) rhetoric went from calling women murderers to telling them they “deserve better” than abortion. The movement swears its protestors are kindly grandmothers, not terrifying bullies. It has even started calling itself a group full of feminists!

But no amount of re-branding can hide the true goal of the anti-choicers: forcing women to carry pregnancies they don’t want, by any means. And the truth is that trying to forcibly stop women from getting abortions is a last-resort option for a stuck movement. . . .

August 7, 2014 in Anti-Choice Movement | Permalink | Comments (0) | TrackBack (0)

The Importance of Contraception to Women's Equality

Cornerstone:  Contraception: A Prescription for Women's Equality, by Kara Loewentheil:

One of the few mercies of the Supreme Court's opinion in Burwell v. Hobby Lobby Inc. last month was its acceptance of the Government's argument that access to contraception is indeed a compelling governmental interest (see pages 39-40 of the majority opinion). Justice Kennedy's concurrence (see pages 2-3), in particular, stressed that this vote for the majority's holding hinged on his belief that the government could achieve its compelling interest in a different manner without burdening the rights of the women whose contraceptive access would be affected. But we should not be too sanguine about this aspect of the holding, because it too is under attack. . . .

August 7, 2014 in Contraception, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Linda Greenhouse on Judge Thompson's Decision Invalidating Alabama's Admitting Privileges Law

The New York Times (opinion column):  A Right Like Any Other, by Linda Greenhouse:

New Judicial Approaches to Abortion Rights

Listening to politicians talk about abortion, watching state legislatures put up ever more daunting obstacles, reading the opinions of judges who give the states a free pass, it’s abundantly clear to me that some constitutional rights are more equal than others. Or to put it another way, there are constitutional rights and then there is abortion — a right, increasingly, in name only, treated as something separate and apart, vulnerable in its isolation from the mainstream of those rights the Constitution actually protects.

And then, forcefully to the contrary, came this week’s opinion by a federal district judge in Alabama, Myron H. Thompson, who declared unconstitutional the state’s Women’s Health and Safety Act, which required doctors who performed abortions to have admitting privileges at a nearby hospital. . . .

August 6, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 5, 2014

Justice Ginsburg Frustrated by Court's Failure To Advance Women's Rights

The New York Times:  Justices’ Rulings Advance Gays; Women Less So, by Adam Liptak:

When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.

In its gay rights rulings, she told a law school audience last week, the court uses the soaring language of “equal dignity” and has endorsed the fundamental values of “liberty and equality.” Indeed, a court that just three decades ago allowed criminal prosecutions for gay sex now speaks with sympathy for gay families and seems on the cusp of embracing a constitutional right to same-sex marriage.

But in cases involving gender, she said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality. . . .

August 5, 2014 in Supreme Court, Women, General | Permalink | Comments (0) | TrackBack (0)

Radical Feminists and Transgender Rights

The New Yorker: What is a Woman?, by Michelle Goldberg:

The dispute between radical feminism and transgenderism.

O May 24th, a few dozen people gathered in a conference room at the Central Library, a century-old Georgian Revival building in downtown Portland, Oregon, for an event called Radfems Respond. The conference had been convened by a group that wanted to defend two positions that have made radical feminism anathema to much of the left. First, the organizers hoped to refute charges that the desire to ban prostitution implies hostility toward prostitutes. Then they were going to try to explain why, at a time when transgender rights are ascendant, radical feminists insist on regarding transgender women as men, who should not be allowed to use women’s facilities, such as public rest rooms, or to participate in events organized exclusively for women. . . .

August 5, 2014 in Culture, Women, General | Permalink | Comments (0) | TrackBack (0)

Texas Abortion Providers Are Back in Court to Fight Restrictions That Could Shut Down Yet More Clinics

The New York Times:  Abortion Providers in Texas Press Judge to Block Portions of New Law, by Manny Fernandez & Erik Eckholm:

Owners of Texas abortion clinics asked a federal judge on Monday to block enforcement of stringent new building and equipment standards, set to take effect on Sept. 1, that they say could force more than half the state’s remaining abortion clinics to shut down, leaving fewer than 10 across a sprawling state.

The clinic owners pressed their case and state officials defended the new requirements, included in a sweeping anti-abortion law that passed last year, on the opening day of what is expected to be a four-day trial here. . . .

August 5, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

Jonathan Will on Fifth Circuit Decision Enjoining Mississippi's Admitting Privileges Law

Bill of Health (Harvard Law School Petrie-Flom Center):  MS Admitting Privilege Law Struck Down by 5th Circuit, by Jonathan Will:

On July 29, 2014 a panel of the 5th Circuit struck down a Mississippi statute that would have effectively closed the only remaining abortion clinic in the state. Just four months ago a different panel of the 5th Circuit upheld a nearly identical statute enacted in Texas. Both statutes require physicians performing abortions to have admitting privileges in local hospitals.

The differing results are unremarkable because both the purpose and effects prongs ofCasey’s undue burden analysis are necessarily fact driven. But there are some open questions worth highlighting from the decisions. The Mississippi law raises a matter of first impression. Namely, of what relevance is it, if any, that Mississippi women would have to cross state lines to obtain an abortion if the law was upheld? After all, even if the last abortion clinic closed, Mississippi women would have a shorter distance to travel to obtain such services than some Texas women now have because of the other 5th Circuit decision.

Continue reading

August 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Analysis: Judge Myron Thompson's Opinion on Alabama Law Employs a Fresh and Useful Template for Applying the Undue Burden Standard

Today, U.S. District Judge Myron Thompson issued a decision – following a 10-day bench trial – declaring unconstitutional Alabama's admitting privileges requirement for abortion providers.  The decision is remarkable in at least two respects.  First, Judge Thompson employs a brilliant interpretation of Planned Parenthood v. Casey that is different from any lower court opinion I have seen and yet that is well-grounded in the decision.  (He had already laid out this framework in an earlier ruling on summary judgment.)  It resolves a longstanding puzzle about the undue burden standard, namely whether and how a court should factor in the state's burden of justification for an abortion restriction when it conducts an undue burden analysis.  Judge Thompson focuses in on a little-noticed aspect of Casey, namely its reliance on ballot-access case law.  The Casey joint opinion analogizes to the states’ “substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote,” in order to explain why “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.”  Yet, in describing the state’s power to regulate elections as “similar” to its power to regulate abortion, the Court suggests that its analysis in the ballot access cases is instructive in the abortion context. 

Judge Thompson takes up this suggestion.  He points out that, in the specific cases that the Casey joint opinion cites, the Court looked at whether the state’s interest in the election regulation was “sufficiently weighty” to justify the restriction it imposed.  In Anderson v. Celebrezze, for example, the Court explained that, when analyzing constitutional challenges to specific provisions of a state's election laws, the Court

must first consider the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Judge Thompson applies this framework, first analyzing the burden that Alabama’s admitting privileges requirement would impose on abortion access in the state.  Finding that the burden would be substantial, he then closely examines the state’s purported justifications for the law and concludes that they are “exceedingly weak.” 

Planned Parenthood v. Casey holds that a law is unconstitutional if it has either the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” But the “purpose prong” of this test has been under-utilized, particularly after the Supreme Court’s 1997 per curiam decision in Mazurek v. Armstrong.  Given the brazenness of recent state attempts to eliminate abortion access under the guise of protecting women’s health, courts have shown renewed interest in examining the justifications for these laws.  I have argued, as have others, that such examination of the states’ purposes is critical.  Judge Thompson’s opinion offers a logical path for courts to do this, following a model that Casey itself endorses.

The second remarkable aspect of Judge Thompson’s opinion is his keen awareness of and compassion for what it is like to be an abortion provider amid a climate of hostility, violence, and professional risks and hurdles.  Judge Thompson opens his factual background section with this discussion, remarking, “[T]his court cannot overlook the backdrop to this case: a history of severe violence against abortion providers in Alabama and the surrounding region.”  These facts are relevant to the court’s conclusion that the admitting privileges requirement would heavily limit abortion access.  Were the law to take effect and thereby eliminate abortion services in Mobile, Birmingham, and Montgomery – as the judge concludes it would – there are “very good reasons to expect that no one would step in to provide abortion services.”

Judge Thompson’s approach to evaluating admitting privileges laws – and other abortion restrictions – under the undue burden standard makes sense, relies on an established framework for balancing a state’s justification for a law with that law’s burden on certain constitutional rights, and is well-supported by the Casey opinion.  It should provide a useful template for courts evaluating the latest wave of abortion regulations.

-CEB (cross-posted on Bill of Health)

August 4, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Declares Alabama TRAP Law Unconstitutional

The Washington Post:  Federal judge: Alabama can’t enforce its new abortion law, by Amy Ohlheiser:

A federal judge has told the state of Alabama that it can’t enforce a new law requiring doctors at abortion clinics to have admitting privileges in nearby hospitals U.S. District Judge Myron Thompson said in his decision Monday that the challenged portion of Alabama’s 2013 abortion law places an undue burden on women in the state, as the Alabama Media Group reported. . . . 

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The decision is available here.

August 4, 2014 in In the Courts, State and Local News, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Thursday, July 31, 2014

Does Hobby Lobby Open Door To Renewed Conscience-Based Claims for Exemptions from Abortion Restrictions?

MSNBC: Satanists Aren't the Only Ones Following Hobby Lobby's Lead, by Irin Carmon:

On Monday, the Satanic Temple drew headlines for declaring that, in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, it was “asserting a religious exemption from the burden of state mandated ‘informational’ abortion materials for those who share their deeply held beliefs.”

In other words, they wanted a conscience clause from laws intended to dissuade women from having abortions by mandating an ultrasound or that a doctor impart biased or medically-inaccurate information about abortion. . . .

But the Satanists are hardly the first to use religion to make an affirmative argument for reproductive rights. For decades, pro-choice activists have been trying to make a religious claim for their view – and generally failing. . . .

But now that the Supreme Court has opened the door to more robust religious exemptions under RFRA, there might be a new opportunity for supporters of abortion rights to try their luck. . . .

July 31, 2014 in Abortion, Religion, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Senator Shaheen Introduces Access to Contraception for Women Servicemembers and Dependents Act

InsuranceNewsNet:  Shaheen Introduces Legislation to Expand Access to Contraception for Military Women, Dependents:

Legislation supported by women's health care advocates would also boost access to comprehensive family planning counseling

Today, U.S. Senator Jeanne Shaheen (D-NH) introduced legislation, the Access to Contraception for Women Servicemembers and Dependents Act of 2014, which would overhaul current Department of Defense'spolicy on contraceptive coverage and family planning counseling. The bill would bring health care provided by the military in line with current law for civilian populations by ensuring that all women who receive health care through the United States military have access to all FDA-approved contraception with nohealth insurance co-pay. The bill would also require the Department of Defense to develop and implement family planning counseling for all servicewoman at specific points during her service. . . .

July 31, 2014 in Congress, Contraception | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

New York City Restriction on Abortion Protest, Mentioned by Supreme Court, Appears Largely Ineffective

The New York Times: New York’s Abortion Protest Law Is Praised by Justices, but Few Others, by Benjamin Mueller:

A crowd of abortion opponents converged on Zena Khan outside of the Choices Women’s Medical Center in Jamaica, Queens, on a recent Saturday. As a blurred mustard sun broke through the morning haze, Ms. Khan sped past posters depicting dismembered fetuses, flip cameras trained on her face and protesters demanding that she get back in her car and leave. . . .

“Should I call the cops?” she asked the escorts, her hands flying like agitated birds around her head. “I’m not even pregnant.” . . .

To the unfamiliar observer, the scene, repeated almost every Saturday morning at Choices and other clinics that perform abortions in New York City, would appear to be nothing so much as unbridled chaos. But it is also seen as one model for how abortion protests in the United States should be managed. . . .

July 30, 2014 in Anti-Choice Movement, State and Local News, Supreme Court | Permalink | Comments (0) | TrackBack (0)