Monday, September 26, 2016
Reacting to how restrictive abortion laws block low-income women's access to reproductive health care and force them across state borders, Kaiya Lyons's article in the Thurgood Marshall School of Law Journal on Gender, Race, and Justice develops the theory that Congress's power to regulate commerce vests it with the authority to invalidate such laws. The abstract follows.
The Supreme Court has consistently held that the right of a woman to choose to have an abortion before viability and without undue burden should be preserved. However, the ability of a woman to exercise that right today is as intimately connected to her economic privilege and geographic location as it was in the days preceding the Court's landmark ruling in Roe v. Wade. As a result of the great deference assigned to state legislatures by Roe and its progeny, increasingly restrictive abortion laws have been enacted across the country that obstruct low income women's access to reproductive health care.
This article seeks to outline how the "seismic shift" in reproductive rights law since the 2010 midterm election forced women to travel into other states to receive abortions, and thus created the very interstate market that would allow Congress to invalidate such laws under the Commerce Clause. While unlikely in the current political climate, such a legislative effort could effectively circumvent the ability of the Supreme Court to further narrow its abortion jurisprudence. This article argues that federal action is necessary to protect the rights of low income and economically vulnerable women for whom abortion is a vital piece of comprehensive reproductive health care.
Monday, September 19, 2016
Linda Greenhouse and Reva Siegel have posted their analysis of Whole Woman's Health v. Hellerstedt to SSRN. The abstract follows:
This essay offers a brief account of the Supreme Court’s most recent abortion decision, Whole Woman’s Health v. Hellerstedt, and its implications for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.
In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health, and found none in the Texas law under review. The Court instructed judges how to assess the asserted health benefits of regulations that predictably will force clinics to close: it required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.
As we show, Whole Woman’s Health clarifies the law defining what counts as a burden and what counts as a benefit to be balanced within the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s lived experience of exercising their constitutional rights. The decision thus offers a robust reaffirmation of the right to abortion and of the need for judges to protect access to the right. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health.
Tuesday, September 6, 2016
Anti-choicers get even weirder: After losing in the Supreme Court, abortion foes turn to desperate distortion
Salon (August 17, 2016): Anti-choicers get even weirder: After losing in the Supreme Court, abortion foes turn to desperate distortion, by Amanda Marcotte
In the wake of the landmark victory of Whole Women's Health v. Hellerstedt, Amanda Marcotte argues that the anti-choice movement has been "sent back to the drawing board" and their two new tactics are spins on old classics: "first, trying to trick people into thinking embryos are babies and then trying to trick people into thinking abortion is too medically dangerous to be allowed." Some newly proposed regulations in Texas, Louisiana and Indiana require women to have a funeral for the 'remains' of a miscarriage or abortion. So far the regulations have been held up in the court.
While these regulations are said to have been "quietly" proposed, anti-choice advocates are a little louder about making claims that abortions are dangerous. Their problem is that statistics published by places like the CDC and Guttmacher show that abortion is extremely safe. Rather than changing their claims, anti-choice supporters argue that they just need more statistics. While these claims seem ridiculous, Marcotte argues that there's a silver lining:
Considering the lengthy history of anti-choice violence against medical providers, this kind of behavior is deeply worrisome.But it also shows the depths of desperation of the anti-choice movement. More data collection will just prove how safe abortion is, and funerals for embryos just remind everyone what kind of sick fantasy lives anti-choice activists have.
Thursday, August 25, 2016
Human Reproduction (July 7, 2016): Is Underage Abortion Associated with Adverse Outcomes in Early Adulthood? A Longitudinal Birth Cohort Study up to 25 Years of Age, by Suvi Leppälahti, et al.:
Friday, August 5, 2016
National Public Radio (July 20, 2016): Anti-Abortion Groups Take New Aim with Diverse Strategies, by Julie Rovner:
In the wake of the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, anti-abortion forces are reconsidering whether the strategy they have pursued for the last several years was ill-conceived. A new strategy among some groups is to lobby legislatures, at both the federal and state levels, to ban abortion after roughly twenty weeks of pregnancy and to ban all dilation and evacuation abortions. A federal bill to this effect passed the House but was defeated in the Senate.
But some anti-abortion groups want to continue fighting for TRAP (targeted regulation of abortion providers) laws and remain convinced that there is a way to formulate such laws that will pass constitutional scrutiny. Thus, the anti-abortion movement is currently divided into two camps, those who want to continue the battle to shut down abortion care clinics in the guise of fighting for women's health, and those who desire a renewed focus on banning abortion outright.
Anti-abortion forces remain convinced that they are winning the fight, despite recent setbacks and despite the social justice leanings of the up and coming generation of millennials. They view the question of who will inhabit the White House come next January as the factor that will be the most decisive in the short term.
Thursday, August 4, 2016
Truthout (July 20, 2016): Louisiana Becomes Latest Front in National Battle over Abortion, by Katie Klabusich:
In the wake of Whole Woman's Health v. Hellerstedt, opponents of abortion have had to lay down their swords in several jurisdictions. Clinics in Mississippi, Wisconsin, Texas and Alabama will remain open, their admitting privileges and ambulatory surgical center provisions eviscerated. Advocates will now use the holding of Whole Woman's Health to argue against a raft of restrictions beyond the ones at issue in the case.
Louisiana holds the 2016 record for abortion-restricting laws, having passed seven, including a 72-hour waiting period and a ban on abortion after 20 weeks of pregnancy. Other laws ban research on the aborted fetuses, prohibit dilation and evacuation, ban medication abortion de facto, and attempt to police the reasons a woman chooses to end her pregnancy. If the laws take effect, the battle for access to safe abortion care will continue to rage.
The Center for Reproductive Rights has sued to block these laws immediately, citing the unconstitutional burden they impose upon women and providers. Commenting on the case, CRR's president Nancy Northrup remarked, "'Louisiana politicians are trying to do what the US Supreme Court just ruled decisively they cannot: burying women's right to safe and legal abortion under an avalanche of unjustified and burdensome restrictions."
Thursday, July 28, 2016
Huffington Post (Jul. 18, 2016): A Play about Abortion Care Shows How "Remarkably Normal" It Is, by Katherine Brooks:
A new documentary play, "Remarkably Normal," shares the stories of real women gleaned from in-depth interviews to emphasize the statistic that one in three American women will have an abortion in their lifetime but that, shockingly, access to medically safe abortion care remains in doubt. The play "aim[s] to express the emotions and humanity of a common experience that political discussions underplay" and for which we, no matter our political stripe, allow little room for honest conversation.
Playwrights Marie Sproul and Jessi Blue Gormezano believe that theater can inspire social change by opening audiences' hearts and minds. They envision "Remarkably Normal" as a game changer--a play by women about women--in an industry dominated by men.
Not only is "Remarkably Normal" a documentary play. It is also an interview play, "a play in which the playwright interviews people on a particular subject and then uses that material to create the play and the characters in it. The audience experiences the play as the interviewer, hearing the responses of the people to whom the questions were asked." The effect is a riveting portrait of women reliving an experience few can understand without experiencing it themselves. Nonetheless, whether one has lived these experiences or not, "Remarkably Normal" makes them impossible to dismiss and in the process deeply humanizes the women telling their stories.
Saturday, July 16, 2016
Salon (July 11, 2016): Anti-choice activists attempt to hijack Black Lives Matter to shame women for abortion, by Amanda Marcotte
Coming off of a week of violent murders, racism, and police violence, many in America believe that coming together as a community is the way to rise above violence. Still, in the wake of tragedy, some conservative activists have hijacked the importance of the Black Lives Matter movement for their own gain - shaming women for abortions. "Conservative Twitter" has erupted with hashtags that proclaim "Unborn Lives Matter," with anti-choice accounts like that of the Radiance Foundation and Students for Life adding the hashtag to anti-choice ads and tweets on their pages. Amanda Marcotte calls out conservative activists for the campaign:
But the eagerness of the anti-choice movement to hijack, undermine, or even demonize the Black Lives Matter movement exposes the “well-meaning people” belief as the myth it is. Anti-choice is about the same politics of resentment, bigotry, and cruelty as the rest of the conservative movement, and this behavior simply proves that fact once again.
Friday, July 15, 2016
Huffington Post (July 14, 2016): Mike Pence Has Led The Fight Against Reproductive Rights For Half A Decade, by Laura Bassett:
Sources say that Trump is likely to pick Mike Pence as his running mate for the 2016 election - news that is particularly bad for reproductive rights. Planned Parenthood President Cecile Richards is quoted in the article, reflecting on how 'obsessed' Pence was with destroying Planned Parenthood over the course of his career; indeed, he wrote the first bill that aimed to swipe all federal funding for the reproductive rights organization. More recently, in March, Pence signed into law a bill that, among other abortion restrictions, requires doctors to offer the "remains" of abortions to their patients.
While anti-choice activists are bolstered by the rumors of the pick, pro-choice organizations know Pence's history, and what is at stake:
“Pence has a rich history of marginalizing women as a politician, the same way Donald Trump has throughout his career and this campaign,” said Marcy Stech, a spokesperson for the pro-choice PAC EMILY’s List. “Together, they are a perfect storm of classic, out of touch, GOP extremism. For the very few women still not convinced that Trump isn’t a threat to women, Gov. Pence should do it—these men are not to be trusted.”
Tuesday, July 5, 2016
New York Times (June 28, 2016), From Uruguay, a Model for Making Abortion Safer, by Patrick Adams:
The scourge of Zika has put pressure on Latin American countries to reconsider their restrictions on abortion. Uruguay in particular presents a picture of what is possible.
In 2002, Uruguay set about to address the problem of the unsafe back-alley abortions that had contributed in large measure to its shocking maternal mortality rate, especially among the poor, and had burdened its health system with heavy costs. A pilot program was initiated in a Montevideo hospital to provide women with factually accurate information about the use of the drug misoprostol, originally developed to treat ulcers, to terminate a pregnancy. Doctors could not prescribe misoprostol for pregnancy terminations or advise women whether or not to use it, but they could legally provide women with factually correct information about its effects.
The women who participated in the program avoided the threat of death from post-abortion sepsis, the hallmark of back-alley abortions. They also presented no severe complications from abortion.
With the program came a change in public perceptions. Abortion, formerly considered criminal, began to be associated with health and human rights. Eight years later, the model was expanded to public facilities throughout the country. Many see the program as pro-life, given that the death of a mother reduces the likelihood of her children's survival.
Pilot program similar to that begun in Montevideo are not operating in Uganda and Tanzania.
Sunday, July 3, 2016
The Guardian (June 30, 2016): Planned Parenthood: eight states now striving to repeal abortion restrictions, by Molly Redden
The victory of the recent SCOTUS decision that slammed down Targeted Regulations of Abortion Providers (TRAP Laws) is already resonating within the reproductive rights community. Planned Parenthood made a statement about the next steps that their legal department plans to take now that the ruling has been handed down by the nation's highest court. In an effort to rally voters for the upcoming November election - both for the Presidency as well as more locally - Planned Parenthood, along with the Center for Reproductive Rights, has its eyes on states beyond Texas:
Lawmakers are formulating specific plans to target similar abortion restrictions in Arizona, Pennsylvania and Virginia, and they are broadly prepared to repeal laws in Florida, Michigan and Texas. In Tennessee, Planned Parenthood is looking to support litigation by the Center for Reproductive Rights against that state’s building requirement law. They will also target Missouri’s admitting privileges law. Earlier this week, officials with Planned Parenthood of Kansas and mid-Missouri signaled that they were prepared, if necessary, to mount a legal challenge.
While some state laws restricting abortion have already fallen in light of the Supreme Court decision, Planned Parenthood and The Center for Reproductive Rights intend to move forward against more challenging laws in the above mentioned states, as well as others, in order to protect reproductive rights nationwide.
Monday, June 27, 2016
United States Supreme Court (Jun. 27, 2016): Whole Woman's Health v. Hellerstedt:
In a 5-to-3 decision, the United States Supreme Court has overturned a Texas law that threatened to drive more than half of Texas's abortion clinics out of business and place abortion services beyond the reach of countless women.
Drawing on tenets established in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the Court struck down a law requiring doctors performing abortions to have admitting privileges at a hospital and requiring clinics performing abortions to meet the standards imposed upon surgical centers. Regarding the admitting privileges requirement, the Court noted that the practice of abortion did not present a safety issue. Moreover, abortion is safe enough that requiring clinics to meet the requirements of surgical centers would be superfluous. Finally, the court could not reconcile the law with the lack of regulation of more dangerous surgical procedures and the wide distribution of waivers of the surgical-center requirements to clinics offering non-abortion services. It declared that the restrictions placed substantial obstacles in the path of women seeking previability abortions in Texas.
Wednesday, June 22, 2016
New York Times (June 16, 2016): C.D.C. Reports 234 Pregnant Women in U.S. With Zika, by Sabrina Tavernise:
The number of pregnant women infected with the Zika virus in the U.S. has risen to 234. The CDC reported 6 cases of abnormalities: three deaths before birth and three babies born with birth defects. However, the CDC did not disclose how many of the infected women gave birth, making it difficult to determine how great a risk Zika poses as a cause of birth defects. The CDC also reported that 189 pregnant women were infected with Zika in U.S. territories including Puerto Rico and the Virgin Islands but did not provide any birth outcomes for the group.
Dr. Denise Jamison, a leader of the CDC's pregnancy and birth defects team, stated that the CDC hopes to provide more information on birth outcomes in Zika pregnancies as the number of births rise.
“We’re sort of in a hard place,” Dr. Jamieson said. “We can’t provide a lot of information about where these women are in their pregnancy. We don’t want to inadvertently disclose information about difficult decisions these women are making about their pregnancies.
She said the numbers included the nine pregnant women the C.D.C. had reported on in February. Of the babies in those cases, at least one was born with microcephaly.
Dr. Jamieson stated that the estimated risk of birth defects based on available data is between 1 and 15%.
Tuesday, June 21, 2016
New York Times (June 15, 2016): How Did I Get an Abortion in Texas? I Didn’t. by Valerie Peterson:
A native of Texas writes about her surprise pregnancy and the high-risk nature of it. Carrying her third, unexpected, child, she delves into the complications that led her to need an abortion in a state that didn't allow for it. Because of the timing of the author's pregnancy and Texas' restrictions, she had to explore options to terminate out of state. In a candid and honest account, Peterson speaks to and for the women in Texas that remain worried about the impending SCOTUS decision, especially those who aren't as privileged as she:
Through a friend, I was connected to a clinic in Florida that caters to women who are terminating for medical reasons, and I spoke to the doctor and nurse there. The doctor explained that Florida didn’t have a 24-hour waiting period, and they could get me in the next day. I booked the first plane ticket I found. I got a hotel room and rental car. I flew to Florida on Friday, and my procedure was over by Saturday afternoon. Including the cost of the procedure, I had to spend close to $5,000.
I remember thinking: What happens to women in my situation who don’t have the ability to do what I just did? My heart aches for those women.
Washington Post (June 15, 2016): Planned Parenthood sues Mississippi over defunding law, by Emily Wagster Pettus:
Even though Planned Parenthood Southeast only received $439 from Medicaid in Mississippi from July 2013- August 2015, Planned Parenthood is suing the state over a new law that bans Mississippi Medicaid from spending money with any health care provider that offers abortion.
Planned Parenthood Southeast only runs one Mississippi clinic in Hattiesburg, which doesn't even offer abortions. However, other clinics run by the Southeast affiliate in Alabama and Georgia do provide abortions. Planned Parenthood of the Greater Memphis Region has also joined in the suit because it receives Mississippi Medicaid payment and provides abortions in its Memphis clinic. Mississippi law already prohibits the use of Medicaid funds to pay for abortions except in the case of rape, incest or danger to the pregnant woman's life. The new law prevents the use of Medicaid funds to pay for other health care services provided by Planned Parentood clinics to Mississippi residents such as birth control and cancer screenings.
Medicaid is a joint federal and state program. Federal law provides that persons enrolled in Medicaid can receive health care services from any participating provider of their choice. In April the director of the Centers for Medicare and Medicaid Services sent a letter reminding all 50 states that they can't cut funding to Planned Parenthood because it may also provide abortion services.
Twenty-four states have considered or enacted laws restricting Planned Parenthood from receiving public funds. The Mississippi case is the 17th lawsuit Planned Parenthood has filed against a state since last July.
Monday, June 20, 2016
Rewire (June 15, 2016): TRAP Laws and the Abortion ‘Crisis’: A Conversation With Award-Winning Filmmaker Dawn Porter, by Tina Vasquez
Rewire talks with award-winning filmmaker Dawn Porter about her new documentary feature, TRAPPED, which highlights the popular and pervasive TRAP laws (Targeted Regulation of Abortion Providers) across the United States. Between 2010 and 2105, 288 laws regulating abortion services have passed. Porter's documentary illustrates the toll it takes on women in states like Alabama and Texas. Porter is candid about her thoughts about the impending SCOTUS decision, safety concerns when filming, and her reasoning for focusing on TRAP laws specifically:
People often discuss abortion in terms of morality, but that’s not what we should be talking about. The reason why these laws have been so effective is because they successfully harm the least powerful of the group they’re targeting. Who’s getting picked on, who’s suffering the most? Women of color, people who are low-income, people who don’t have health insurance. There’s something so unjust about how these laws are disproportionately affecting these populations, and that really bothered me. I’m certainly interested in abortion as a topic, but I’m also interested in politics and power and how those things take shape to hurt the most vulnerable.
TRAPPED airs on PBS’ Independent Lens on Monday, June 20th at 10:00pm.
ACLU of Texas (June 15, 2016), t ACLU of Texas Demands DSHS Stop Concealing Abortion Statistics, by Anna Núñez
The Texas department of State Health Services has gathered abortion statistics for 2014, after the passage of the restrictive HB2, which is currently being challenged as unconstitutional because it imposes an undue burden on women seeking abortions. The ACLU of Texas is alleging the concealment of the findings. The ACLU said in the linked statement above that they requested the stats "dozens" times, only to be rebuffed by the agency and falsely told that the statistics were not yet ready, though the findings were apparently final in March. The ACLU believes that the reasoning is clear - that DSHS isn't releasing the information because it is damaging to HB2:
“The State of Texas claims that HB2 protects women’s health. If that’s true, why wouldn’t our public health agency want to trumpet its success?” said Terri Burke, executive director for the ACLU of Texas.
The letter also states that supervisors instructed employees to lie about the statistics and avoid mentioning them, in an apparent attempt to circumvent the legal requirements of the Texas Public Information Act."
The ACLU has also written and released a letter aimed at the defendant in the pending SCOTUS case, Commissioner Hellerstedt, also linked in the above article.
Saturday, June 18, 2016
Rewire (June 16, 2016): Obama Administration Punts on Helms Amendment, by Christine Grimaldi,
During his address at the United State of Women Summit on Tuesday, President Obama described advancing gender equality as a foreign policy priority, stating that "we’ve implemented a comprehensive strategy to end gender-based violence around the world, from prevention, to treating survivors, to bringing perpetrators to justice."
Yet, activists are frustrated that the administration has failed to take steps to clarify the scope of the "Helms Amendment" which prohibits the use of U.S. foreign assistance funds for abortion "as a method of family planning." The funding prohibition should not apply to abortions in case of rape, incest or where the pregnancy endangers the life of the pregnant women, but the Obama administration has failed to recognize and enforce those exceptions. Activist had hoped that the administration would clarify the exceptions by executive action.
An administration official contacted by Rewire confirmed that the Administration's commitment to treating rape survivors would not result in action on the Helms Amendment, stating that there are no "new announcements on that front."
Thursday, June 16, 2016
The Guardian (May 26, 2016): Some women regret their abortions. But we all deserve to have the choice, by Jessica Valenti
Jessica Valenti highlights the recent admission of a wife of a Republican legislator who explained that she deeply regrets her abortion. Valenti explains that while this feeling happens, it is statistically rare among American women, who for the most part do not regret their abortions. While showcasing women that regret their abortions is a tactic often used by the anti-choice movement, the article poignantly points out that this is still a choice, a viable access point, and decision that these women made.
"Even though the vast majority of women who have abortions won’t regret them, there will always be some women who wish they didn’t end a pregnancy – that’s just the reality. But it’s better to regret a decision than never having the option to make it in the first place."
Anti-Choice Groups Use Smartphone Surveillance to Target ‘Abortion-Minded Women’ During Clinic Visits
Rewire (May 29, 2016): Anti-Choice Groups Use Smartphone Surveillance to Target ‘Abortion-Minded Women’ During Clinic Visits, by Sharona Coutts
In the digital age of tracked advertising, we are constantly bombarded with ads that companies choose for us based on our technological imprint and history. Now, these ads are getting personal. The newly re-branded Rewire writes about John Flynn, CEO of Copley Advertising, who decided to use technology for targeted ads within the anti-choice movement; specifically, against women inside the safety of abortion clinics encouraging them to change their mind about their personal and (not-so) private choice to terminate a pregnancy. Because laws on data collection and tech privacy are still catching up with the speed at which the sector is progressing, this is all, as of now, legal.
"Women who have visited almost any abortion clinic in the United States have seen anti-choice protesters outside, wielding placards and chanting abuse. A Boston advertiser's technology, when deployed by anti-choice groups, allows those groups to send propaganda directly to a woman’s phone while she is in a clinic waiting room."