Thursday, March 31, 2016
Los Angeles Times (March 29, 2016): Utah governor signs bill requiring abortion anesthesia, by Hallie Golden:
On Monday, Utah's governor signed a bill that would require doctors to give anesthesia to women having abortions at 20 weeks or later. The law will be the first of its kind and has been criticized by doctors for increasing health risks to women by giving them unnecessary heavy sedation. According to the bill's sponsors, the purpose of the law is to prevent the fetus from feeling pain. However, there is no medical evidence that a fetus can feel pain at 20 weeks. In order for anesthesia to reach the fetus, a pregnant woman would have to be given "general anesthesia which would make her unconscious and likely require a breathing tube, or a heavy dose of narcotics."
Despite the law's alleged purpose to avoid fetal pain, it does not apply to women who have abortions because their life is at risk or because the fetus is not viable outside the womb. Because of the law's broad definition of abortion as "the intentional termination or attempted termination of human pregnancy after implantation of a fertilized ovum through a medical procedure carried out by a physician or through a substance used under the direction of the physician," the law could be interpreted to apply to women who seek to induce labor early due to a problem with the pregnancy or because the woman is past her due date.
New York Times (March 31, 2016): New FDA Guidelines Ease Access on Abortion Pill, by Sabrina Tavernise:
The Food and Drug Administration has updated its guidelines on mifepristone, the drug that is used for medication abortions. The change brings the guidelines in line with the current standard medical protocol. The new guidelines reduces the dosage to 200 milligrams from 600 milligrams, decreases the number of visits a woman must make to a doctor to two from three, and extends the period when she can take the pill to 10 weeks from seven weeks.
Although drugs are commonly used off-label, many states have passed laws that require that medication abortion drugs only be used in accordance with FDA guidelines even though the old guidelines were based on clinical evidence from the 1990s. As a result, the laws required doctors to prescribe higher dosages, required women to make more visits to their doctor and limited the availability of the drug to earlier stages of pregnancy.
The change in the guidelines should allow doctors to prescribe mifepristone consistently with medical best practices in states that require that the FDA guidelines be followed. However, many states have independently codified elements of the old protocol, such as the number of doctors' visits required. It is unclear whether the change in the FDA guidelines will trigger reform efforts in those states.
Wednesday, March 30, 2016
Politico (May 27, 2016): Slew of anti-abortion laws may thwart Zika research, by Brett Norman:
Research to prevent the spread of the Zika and the birth defects associated with it may be stymied by new state laws prohibiting or restricting fetal tissue research. On Friday, Florida passed anti-abortion legislation that includes a prohibition on donating aborted tissue. Five states, North Dakota, South Dakota, Oklahoma, Ohio and Indiana have gone further, banning research on aborted fetal tissue and Arizona is expected to pass a similar prohibition. Florida lawmakers have been criticized because Florida is one of the states at greatest risk to be affected by Zika given the state's proximity to areas affected by the virus.
Fetal tissue research was important for research to develop vaccines for other diseases such as rubella, chickenpox, rabies and hepatitis A. Because Zika has been linked with birth defects, research on fetal tissue is important to help scientists understand how the virus disrupts fetal development and develop possible treatment.
Robert Golden, dean of the University of Wisconsin School of Medicine and Public Health, helped fight off an effort to ban fetal tissue research that had gained traction in his state last fall. He said politicians who would obstruct the work but take advantage of the benefits are hypocrites.
“With the horrors of the Zika virus and its almost certain spread to Florida, to me it’s unfathomable that anyone there would want to restrict this research,” Golden said.
Tuesday, March 29, 2016
Think Progress (March 29, 2016): How to Make Sense of the Baffling Order the Supreme Court Just Handed Down on Birth Control, by Ian Millhiser:
On Tuesday, the Supreme Court handed down an unusual order seeking more briefing in Zubik v. Burwell, a challenge to Obama administration regulations intended to expand access to birth control. Under the regulations at issue in Zubik, most employees must include contraceptive coverage in their employer-provided health plan. Employers who object to birth control as religious groups, however, may either fill out a form or write a brief letter seeking an exemption from this requirement. Once they do so, they are permitted to offer insurance that does not cover birth control, and, in most cases, their insurance provider will offer a separate, contraception-only plan to the employer’s workers.
The Supreme Court's order instructs the parties to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” The Court appears interested in whether the employer could notify the insurance company that it does not wish to provide birth control when they contract for insurance and the insurance company could then notify employees that it will separately provide contraceptive coverage cost-free separate from the employers' plan. This solution would allow employees to receive coverage from the employer's insurer and avoid the need to purchase a separate policy.
The catch, however, is that it may not be possible for the federal government to put such a solution in place, at least without a change to federal law. Employer benefits are governed by complex federal statutes such as the Employee Retirement Income Security Act (ERISA). The Obama administration found authorization for its current rules in the existing ERISA statute, but it is not entirely clear that current law will enable them to move forward with the idiosyncratic solution described in the Supreme Court’s Tuesday order. Indeed, it is likely that one reason that the Court asked for additional briefing in this case was to determine whether the government has the authority to implement the justices’ preferred solution under ERISA.
Religion Dispatches (March 24, 2016): Why Zubik is Especially Important For Women of Color, by Elizabeth Platt and Kira Shephard:
Commentary around Zubik v. Burwell has focused on whether opting out of the Affordable Care Act (ACA)'s contraceptive mandate burdens the free exercise rights of religious non-profits. The non-profits currently have an accommodation that allows them to opt out of paying for contraceptive coverage which triggers their insurer providing coverage using separate funds. However, the non-profits claim that the act of opting out violates their rights because it will allow women to obtain contraceptive coverage through their employer health plan. If the non-profits win, it could result in the loss of contraceptive coverage for thousands of women.
Because of the importance of contraception to women's health the Institute of Medicine recommended that contraceptive care and counseling be included as preventative care that does not require a co-pay under the ACA. Platt and Shephard argue that a ruling in favor of the religious non-profits could have a particularly harsh impact on women of color who have the highest rates of unintended pregnancy, abortion, and maternal mortality.
Eliminating the disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and contraceptive counseling. Access to contraception allows women of color to plan whether and when they have a child, which provides them with greater financial stability and freedom. Women of color, on average, earn significantly less than white women, and many cannot afford to pay for quality contraception.
NPR (March 28, 2016): Pregnant and Addicted: The Tough Road to Family Health, by Sarah Jane Tribble:
The number of people dependent on opioids is increasing, including women of child-bearing age. However, it is difficult for pregnant women with substance abuse problems to get help. "Nobody wants to touch a pregnant woman with an addiction issue."
According to the American Congress of Obstetricians and Gynecologists, women who are pregnant should have medically assisted therapy that at least temporarily replaces the opioids they are using with drugs that are more stable, like methadone. Withdrawal should be discouraged during pregnancy if medically assisted therapy is available.
Quitting opioids cold turkey is dangerous for the infant and could increase the risk of preterm labor or fetal death.
NPR profiles a pregnant woman who was turned away from two hospitals and several clinics before receiving opioid replacement therapy.
Thursday, March 24, 2016
Rewire (March 24, 2016): Justices Against "Hijacking," and Other Unsettling Details from the "Zubik v. Burwell" Oral Arguments, by Greg Lipper:
There was some cause for optimism coming into Wednesday’s argument in Zubik v. Burwell. Eight of nine federal appeals courts—including the ultra-conservative Fifth Circuit—have upheld the accommodation process for religiously affiliated nonprofits wanting to opt out of providing the birth-control coverage. Might the Supreme Court finally send these Affordable Care Act challenges to the great courtroom in the sky?
Not so fast: When it comes to reproductive rights, trips to the Supreme Court are always dicey. Wednesday’s oral argument reveals, on the one hand, that the justices on the Court’s liberal wing believe that the accommodation imposes no substantial burden on religious exercise and is necessary even if it does. On the other hand, Chief Justice John Roberts and Justice Samuel Alito (and presumably Justice Clarence Thomas) clearly think that the accommodation burdens the objectors’ religious exercise and cannot otherwise be justified.
Greg Lipper summarizes Wednesday's Supreme Court argument.
Wednesday, March 23, 2016
Slate (March 22, 2016): Zubik v. Burwell, the Latest Challenge to the ACA's Contraception Mandate Could Have Wide-Ranging Consequences, by Dahlia Lithwick:
On Wednesday, the Supreme Court will hear oral argument in Zubik v. Burwell. Dahlia Lithwick argues that in many ways Zubik is as important a case as Whole Women's Health v. Hellerstedt because the "challenge sets up a dramatic new effort to curb civil rights laws by way of religious veto. The result will not implicate merely birth control but also gay rights and racial discrimination."
In Zubik, religious non-profits challenge the accommodation offered to them so that they can avoid providing employees contraception that is otherwise required under the Affordable Care Act. The accommodation allows the employers to send a letter or fill out a form stating that they have a religious objection to providing coverage. Insurance companies then provide the contraceptive benefit themselves using separate funds. The accommodation has been challenged under the Religious Freedom Restoration Act which prohibits the government from imposing a "substantial burden" on the exercise of religious beliefs unless the burden is the "least restrictive means" to achieve a "compelling government interest."
In a Washington Post op-ed Laycock noted that, according to the logic of their lawsuit, no form of accommodation could satisfy the religious employers. “[T]heir real objection is to what their secular insurers are required to do,” Lacycock writes. “The religious objectors demand a right to control how the government regulates insurance companies.” In part, the religious objectors are arguing that the government is conceding that its purposes can’t be all that compelling by offering an accommodation in the first place, which Laycock reasonably contends will deter future accommodations and imperil real religious liberty.
Lithwick notes that the religious non-profits appear to be seeking a "general veto power over other people's rights" and that their arguments are inconsistent with the way that religious accommodation has been historically understood.
BBC (March 18, 2016): Chile Lawmakers lift abortion ban introduced by Pinochet:
Last week, Chile's lower house of Congress approved a bill that would decriminalize abortion in cases of rape, health risk to the mother, and instances where the fetus is not viable. The bill, which is supported by Chilean President Michelle Bachelet, needs to pass the Senate to become law. Chile is one of seven Latin American countries that ban abortions in all circumstances. The other countries are El Salvador, the Dominican Republic, Haiti, Honduras, Nicaragua and Surinam.
Tuesday, March 22, 2016
Dallas Morning News (March 15, 2016): The problem with the anti-abortion speciality license plate, by Noah Feldman:
Noah Feldman's column discusses a flaw in the Supreme Court's free speech jurisprudence. In a decision upholding Texas's ability to refuse to allow a license plate with a Confederate flag, the Supreme Court held that license plates are government speech. This decision led to a reversal of a Fourth Circuit case holding that if North Carolina offers drivers an anti-abortion license plate, it must also offer a pro-choice plate.
According to Feldman:
The problem with making license plates into government speech is twofold. First, the government isn’t speaking alone. In his dissent in the North Carolina case, Judge James Wynn wrote that any reasonably well-informed observer would know the individual is speaking, too.
The North Carolina case makes the viewpoint discrimination especially clear because the abortion issue has two easily recognized sides. If you want an abortion-rights plate to speak against the anti-abortion plate, you simply can’t get one. The message is by definition unavailable to you.
It isn’t just that the government disagrees with you. It’s actively giving the other side a forum while denying the same forum to you.
The second problem with the Supreme Court’s government speech doctrine as it’s now being applied is that it’s binary: Either the government can say anything it wants or else it’s heavily constrained by the risk that it might unconstitutionally limit free speech.
Feldman suggests that the court should carve out a "middle ground" for situations where the creates branding opportunities to private actors. "In such circumstances, the government should be banned from giving space to only one side in a dispute. But the government should be allowed to exclude certain content on the grounds that it might cause offense."
Monday, March 21, 2016
Rewire (March 21, 2016): Everything You Need to Know For The Supreme Court Birth Control Case, " by Jessica Mason Pieko:
On Wednesday, March 26, the Supreme Court will hear argument in Zubik v. Burwell. The case is the second challenge the Court has considered to the Affordable Care Act's birth control benefit.
This time, the plaintiffs are religiously affiliated businesses like universities, hospitals, and nursing homes: nonprofits that serve the general population, but have a corporate affiliation to a faith group. Those organizations argue that, like churches, synagogues, and other houses of worship, they should be fully exempt from the law’s requirement that employer-provided health insurance plans cover contraception as preventive care.
Pieko's article provides an overview of the case. More information about the case is available on SCOTUS blog.
New York Times (March 20, 2016): When Did Porn Become Sex Ed? by Peggy Ornstein:
According to Mother Jones in 2016, the federal government will spend $85 million on abstinence only programs despite research questioning its effectiveness. President Obama has proposed removing all funding for abstinence only education from the 2017 federal budget. Obama has proposed cuts to abstinence only education before. His first budget as president and and his 2010 budget sought to make cuts to abstinence funding, but the cuts did not make it through Congress. The proposed 2017 cuts are likely to have a similar fate.
In addition to concerns about the efficacy of abstinence only programs in reducing teen pregnancy, Peggy Ornstein discusses the impact of abstinence-only curriculums that teach students "little more than 'don't.'" Ornstein argues that we fail our teens by not having conversations about what happens after "yes."
The statistics on sexual assault may have forced a national dialogue on consent, but honest conversations between adults and teenagers about what happens after yes — discussions about ethics, respect, decision making, sensuality, reciprocity, relationship building, the ability to assert desires and set limits — remain rare. And while we are more often telling children that both parties must agree unequivocally to a sexual encounter, we still tend to avoid the biggest taboo of all: women’s capacity for and entitlement to sexual pleasure.
Sunday, March 20, 2016
RH Reality Check (March 14, 2016): Unintended Pregnancy Reaches a 30-Year Low, But Racial and Economic Disparities Persist, by Elizabeth Dawes Gay:
A new study from the Guttmacher Institute indicates that in 2011, the unintended pregnancy rate for women 15-44 fell to 45% of all pregnancies. The decline appears to correlate to expanded access to contraceptives following implementation of the Affordable Care Act. However, despite the gains, poor women and women of color continue to experience higher rates of unintended pregnancies. Elizabeth Dawes Gay discusses systemic inequities that lead to the disparities. Despite passage of the ACA, women of color are still more likely to be uninsured. The majority of the 17 states that have refused to expand Medicaid eligibility have a higher percentage of residents of color. Racial discrimination in health care settings persist and may lead women to avoid health systems. Finally, "women of color disproportionately struggle under the weight of poverty." This may make it difficult for them to afford birth control when faced with the needs of paying other bills. Gay cites findings from the Center for American Progress that "single Black women have a median wealth of only $100 and single Latina women have a median wealth of $120, compared to $41,500 for single white women."
Friday, March 18, 2016
Salon (Mar. 14, 2016): While America Is Distracted by the Trump Freakshow, Indiana Just Passed One of the Most Restrictive Abortion Bills in the Nation, by Bob Cesca:
A draconian anti-abortion bill has landed on Governor Mike Pence's desk, passed by a legislature determined to raise the stakes in the campaign conservatives are waging against a woman's right to choose. Described as a "reproductive Jim Crow law" by Salon reporter Bob Cesca, the bill contains a litany of targeted regulations of abortion providers (TRAPs) as well as" a ban on all abortions for elective reasons--and if the fetus suffers from any disability whatsoever." Women who are able to surmount the obstacles and have an abortion must pay for the burial or cremation of the fetus. In addition to the now-familiar ultrasound requirement, women will be required to listen to the fetal heartbeat. All of this is on top of the TRAP laws that have left all but four of Indiana’s 92 counties without an abortion facility.
Thursday, March 17, 2016
Professor Caroline Mala Corbin has posted to SSRN (here) the issue brief she wrote for the American Constitution Society on why the Religious Freedom Restoration Act does not provide a defense to the contraception mandate under the Affordable Care Act. The issue is presented in the case of Zubik v. Burwell.
Here is the abstract:
The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.
Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.
In West Virginia,
Overriding the governor’s veto for the fourth time this year, West Virginia lawmakers put a ban on a common second-trimester abortion method into law on Thursday. Lawmakers voted to override a veto by Gov. Earl Ray Tomblin, a Democrat, of a bill outlawing the dilation and evacuation procedure, considered the safest second-trimester abortion method. Many Democrats sided with the Republican majority in favor of the override, which required a simple majority vote from the House and the Senate. The abortion ban takes effect in late May. In vetoing the bill, Mr. Tomblin cited patient safety concerns from doctors and worries that it would be unconstitutional. Courts blocked similar bans that Kansas and Oklahoma enacted in 2015. Proponents of the bill refer to the procedure as dismemberment. The law bans the abortion method unless the doctor had already caused the fetus’s demise. Exceptions exist for medical emergencies.
In South Carolina,
Gov. Nikki R. Haley said Tuesday that she would almost certainly sign a bill banning abortion past 19 weeks. Ms. Haley, a Republican, said she “can’t imagine any scenario in which I wouldn’t sign it.” The bill could soon be on the governor’s desk. The House is expected to vote Wednesday on a compromise the Senate passed last week. The measure would allow exceptions only if the mother’s life was in jeopardy or a doctor determined that the fetus could not survive outside the womb. Similar laws are in effect in 12 states. They have been blocked by court challenges in three others.
Wednesday, March 16, 2016
SCOTUS Blog (Mar. 7, 2016): Court Restores Woman’s Right to Be a Mother, by Lyle Denniston:
In a victory for LGBTQ advocates, the Supreme Court issued a unanimous decision on Monday, restoring a mother’s legal parenting rights to the children she had adopted with her same-sex partner, the children’s birthmother. The case, V.L. v. E.L., originated in Alabama, where plaintiff E.L. appealed a visitation order granted to V.L. to the Alabama Court of Civil Appeals. The Alabama Supreme Court nullified the visitation order, refusing to recognize the adoption decree granted in Georgia.
The Court’s unsigned (“per curiam”) decision in the Alabama adoption case was based entirely on the provision in the Constitution’s Article IV declaring that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” and on the Court’s prior interpretations of that clause. If a state court has jurisdiction under its own laws to issue a decision, Monday’s opinion said, then that decision is entitled to respect in the courts of every other state.
Tuesday, March 15, 2016
New York Times (Mar. 5, 2016): The Return of the D.I.Y. Abortion, by Seth Stephens-Davidowitz:
The recent surge in state-level anti-abortion legislation, such as the Texas TRAP law at issue in Whole Woman’s Health v. Hellerstedt, has led to the closure of many abortion providers across the country. While the impact of such laws on access to safe abortions is clear, the response of pregnant women is less so due to the silencing stigma surrounding the procedure.
Google searches can help us understand what’s really going on. They show a hidden demand for self-induced abortion reminiscent of the era before Roe v. Wade.
This demand is concentrated in areas where it is most difficult to get an abortion, and it has closely tracked the recent state-level crackdowns on abortion.
While only 34% of people involved in an abortion – that is, people who have had an abortion or their partners – tell anyone about the procedure, Google searches offer a window into the decision behind an abortion.
Search rates for self-induced abortion were fairly steady from 2004 through 2007. They began to rise in late 2008, coinciding with the financial crisis and the recession that followed. They took a big leap in 2011, jumping 40 percent. The Guttmacher Institute singles out 2011 as the beginning of the country’s recent crackdown on abortion; 92 provisions that restrict access to abortion were enacted. There was not a comparable increase in searches for self-induced abortions in Canada, which has not cracked down.
These statistics do not reveal the true trends in self-induced abortions across the country, but they certainly indicate a disturbing increase in demand in states where abortion services have become all-but impossible to obtain.
Monday, March 14, 2016
Guttmacher Institute (Mar. 2, 2016): U.S. Unintended Pregnancy Rate Falls to 30-Year Low; Declines Seen in Almost all Groups, but Disparities Remain, by Rebecca Wind:
A new analysis from the Guttmacher Institute, just published in the New England Journal of Medicine, shows that the U.S. unintended pregnancy rate declined substantially between 2008 and 2011. According to “Declines in Unintended Pregnancy in the United States, 2008–2011,” by Lawrence B. Finer and Mia R. Zolna, there were 45 unintended pregnancies for every 1,000 women aged 15–44 in 2011, down from 54 per 1,000 in 2008. The 2011 rate was the lowest observed in three decades. Although unintended pregnancy rates have declined among nearly all demographic groups examined, disparities still remain, particularly for poor women and women of color.
The study, released last week, can be found here.
Sunday, March 13, 2016
New York Times (Mar. 10, 2016): First Uterus Transplant in United States Fails, by Denise Grady:
Performed by physicians at the Cleveland Clinic, the first uterus transplant in the United States has failed. The nature of the complications with the transplant have not been revealed, but pathologists are analyzing the uterus in the hopes of determining what went wrong.
The Clinic's uterine transplant program is an effort to enable women without a uterus to become pregnant and give birth.