Friday, December 18, 2015
New York Times (Dec. 17, 2015): Judge Leaves Northern Ireland's Abortion Law to Lawmakers:
A Belfast judge declined to modify Northern Ireland's strict abortion laws on Wednesday, saying that only lawmakers had the authority to bring the current legislation in line with European human rights laws.
Judge Mark Horner of the Northern Ireland High Court said that ordering changes to allow abortions in the case of a fatal fetal abnormality, rape or incest to conform with the European Convention of Human Rights Act of 2003 would be “a step too far.”
His decision, which reinforces a previous ruling he made last month, puts the responsibility firmly on the local assembly to resolve the matter, though it does not compel lawmakers to do so.
Unlike other parts of the United Kingdom, the 1967 Abortion Act does not apply to Northern Ireland, where abortion is illegal other than in cases where the life or mental health of the mother is in danger.
Under the 1861 Offenses Against The Person Act, a person convicted of performing an illegal termination faces a sentence of life in prison.
The government is expected to appeal the initial ruling.
Thursday, December 17, 2015
New York Times (Dec. 14 & 15, 2015): Disposal of Fetal Tissue Debated in Court, Ohio Statehouse and Ohio: Legal Fight on Fetal Disposal:
A federal judge in Ohio has temporarily blocked state officials from taking legal action against Planned Parenthood to enforce a rule governing the disposal of fetal tissue. The order, issued Monday by Judge Edmund Sargus Jr., came in a dispute over how Planned Parenthood handles fetal tissue. Planned Parenthood is suing Ohio’s health director, claiming that the state’s health department changed the interpretation of the disposal rule without notice and then unfairly targeted its three affiliates that provide abortions.
The change in the rule's interpretation came on the heels of an investigation of Planned Parenthood by the Ohio Attorney General that found no evidence that Planned Parenthood made money from aborted fetuses. Planned Parenthood of Ohio claims it has scrupulously followed the law on fetal disposal. The next hearing in the dispute will take place on January 4th.
Sunday, December 13, 2015
New York Times (Dec. 12, 2015): Ohio: Objection to Disposal Practices at Planned Parenthood Clinics, by Tamar Lewin:
An investigation into whether three Planned Parenthood clinics had improperly sold fetal tissue found that they had not, but said that they disposed of aborted fetuses improperly by turning them over to disposal companies that take the remains to landfills, the state attorney general, Mike DeWine, said Friday. Mr. DeWine said that sending aborted fetuses to a landfill was “callous and completely inhumane” and violated a state administrative code requirement that fetuses be disposed of “in a humane manner.” He referred his findings to the Ohio Department of Health, which oversees abortion clinics. Stephanie Kight, the president and chief executive of Planned Parenthood of Greater Ohio, issued a statement calling the accusations “inflammatory and baseless.” She said Planned Parenthood “handles medical tissue like any other quality health care provider. Our agreements with vendors all require them to follow state law, and dispose of tissue accordingly. If they are not, then I will take swift action.” Ms. Kight said she was concerned that the attorney general’s report was “not the result of meaningful investigation, but instead yet another attack on women’s access to health care in the state of Ohio.”
Tuesday, December 8, 2015
Abortion and the Supreme Court, by Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
In his recent remarks at the What’s the Harm? conference, captured here and in a blog post at Stanford University’s Hoover Institution web site, Professor Richard Epstein explains why he believes the Supreme Court, having granted certiorari, should reverse the Fifth Circuit’s decision in Whole Woman’s Health v. Cole. In that decision, the appeals court upheld the Texas regulations that have drastically reduced the availability of abortion in the Lone Star State. Epstein would have the Court “scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes.”
Epstein criticizes the Fifth Circuit for having given “undue credit to legislative wisdom” and for having made the availability of out-of-state abortions a reason for giving the Texas regulations a pass. The court made plain it was employing a watered-down version of the rational basis test. Epstein objects to the use of this test “to eviscerate the painful compromises wrought in [Planned Parenthood v. Casey].”
Epstein does this even though he has long had profound misgivings about the soundness of Roe v. Wade, which he wrote about as long ago as 1973: Richard A. Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," 1973 Supreme Court Review 159 (1973). But at this point the debate is no longer about how to squeeze out the right of abortion from the Due Process Clause. It is about whether to reverse course some 42 years after the earlier decision was made. That might well be appropriate with a forthright opinion, which comes from the Supreme Court, although it is highly risky to upset a long-established constitutional balance. What is not acceptable is to overrule a decision in the guise of interpreting it, which is what is done when the rational basis test is invoked to insulate the decisions of the Texas legislature from any serious scrutiny.
This rise of the rational basis test did not originate with cases dealing with personal liberties, but with those dealing with questions of property rights. Epstein traces the appeals court’s deference to any “conceivable” legislative purpose to Hawaii Housing Authority v. Midkiff, where the Supreme Court validated Hawaii’s plan to dismantle the “economic evils of a land oligopoly” that, according to Epstein, never truly existed. He traces the appeals court’s invocation of out-of-Texas alternatives to abortion to Ruckelshaus v. Monsanto Co., where the Court reasoned that a law requiring manufacturers to disclose data in connection with the production of pesticides did not effect a taking because Monsanto could avoid the requirement by selling its pesticides only in foreign markets.
Epstein urges those who would criticize the Fifth Circuit’s decision to be consistent. If we believe that the rational basis test was inappropriately invoked in Whole Woman’s Health, we should not complain that, in Burwell v. Hobby Lobby, the Court refused to use it in evaluating a mandate that required even employers with religious objections to provide health-insurance coverage for contraception. We should not, in other words, “split the constitutional universe between those individual rights that merit serious protection and those that do not.” It is very important not to have political preferences determine the appropriate level of scrutiny in constitutional cases. In general, the right test is to give the deference associated with the business judgment rule to the government when it is in charge of running some public institution, like a school or the military. The hard choices require some deference to management expertise, although probably less than in the private sector, because the exit option is weaker with public bodies. But the higher standard does rightly apply when the government acts as a regulator as when it forces the sale of leasehold units in Midkiff, the registration of fungicides in Ruckelshaus, or the operation of private abortion clinics in Whole Woman’s Health.
Thursday, December 3, 2015
Medical Harms of Abortion Restrictions, by David A. Grimes, M.D.
Enacted under the pretense of greater safety for women, oppressive abortion regulations are having a paradoxical effect: endangering American women. Few abortion opponents have the candor to admit the real goal of this epidemic of state legislation. They hope to make safe, legal abortion inaccessible and thus drive women into the back alley once again. This meets the definition of misogyny.
Abortion has been well regulated for decades
A myriad of regulations cover abortion services. However, after Planned Parenthood v. Casey opened the door to more state restrictions, the problem has become epidemic. Having provided abortions in clinics and hospitals for more than four decades, I can report that corridor width (regulated by 10 states) has no relation to safe abortion care.
No public health need exists for more regulations four decades after Roe v. Wade
Abortion remains one of the safest procedures in contemporary medical practice, and that has been true for four decades. Indeed, just two years after Roe v. Wade, the Institute of Medicine documented the public health benefits of safe, legal abortion. According to the federal government, the risk of death from abortion in recent years has been less than 1 death per 100,000 procedures. To put that in some perspective, the risk of death from an injection of penicillin is twice that high. A recent survey of complications after abortion in the state of California confirmed that emergency room visits and hospitalization after abortions are rare.
Compared to what?
The U.S. is an anomaly among developed countries in having a risk of maternal death that is rising, not falling. In the most recent federal report, the risk of death from maternal causes was 16 deaths per 100,000 live births. A comparison of abortion and childbearing risks, published in 2012, found a 14-fold higher risk with childbirth. Because of the increasing risk of childbirth, the disparity is larger today.
Despite medical advances in recent decades, pregnancy, childbirth, and the post-delivery period remain dangerous. According to data from the Centers for Disease Control and Prevention (CDC), a woman’s risk of having one or more pregnancy-related complications is 60%. Given about 4 million births per year in the U.S., that translates into more than 2 million women suffering complications, some being long-lasting.
Delay is dangerous
As documented decades ago, one of the most powerful predictors of abortion safety is the duration of the pregnancy: the earlier the procedure, the safer. Delays of any origin, such as mandatory waiting periods, postpone care to later, more dangerous stages of pregnancy. Studies of the impact of these laws in Texas have confirmed this harm, with delays up to three weeks. When clinics are forced to close because of draconian abortion restrictions, women are also forced into interstate travel to get care. Still others resort to dangerous attempts at self-induced abortion.
Three ethical principles provide the foundation for all health care: beneficence, autonomy, and justice. Beneficence requires that what we do to patients is in their best interests. Autonomy means free choice among available treatment options based on the best available scientific evidence. Justice means equitable access to care. Imposing gratuitous abortion restrictions violates all three criteria by increasing risks to women, limiting treatment choices, and making adequate care dependent upon one’s zip code. Regardless of one’s views of abortion, new regulations must be rejected as unethical.
Bad old days redux?
In the year that I was born, more than 700 women died in the U.S. from dangerous, clandestine abortions. The population of the nation was less than half of that today. Despite the well-documented health benefits of safe, legal abortion for women and their families, some want to return women to the back alley again. Our response as a nation must be “never again.”
Saturday, November 28, 2015
Dorf on Law (Nov. 10, 2015): Measuring the Chilling Effects of Late-Term Abortion Limits, by Michael Dorf:
Here is the abstract for the paper:
Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights. We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage.
Wednesday, October 14, 2015
Jezebel (Oct. 12, 2015): California Crisis Pregnancy Centers Sue Over Medical License, Abortion Disclosure Law, by Anna Merlan:
Last week California's Reproductive Fact ACT was signed into law. This Act requires crisis pregnancy centers in the state of California to disclose that they do not provide medical services.
On Saturday, two anti-abortion clinics sued the attorney general, arguing their free speech rights are being violated...That argument worked in Austin, Texas, where a similar signage law was struck down in 2014. Another one was upheld in New York City, although the State Supreme Court threw out a provision making the clinics state directly whether they provide abortions.
Scotus Blog (Oct. 9, 2015): Relist Watch OT2015Edition, by John Elwood:
Currier v. Jackson Women's Health Clinic was one of several cases relisted by the court last week, but a conference has yet to be scheduled.
A challenge to a similar Texas law arrived at the Court in June. The Court issued a stay in that case, Whole Women’s Health v. Cole, 15-274, by a five-to-four vote. The Court likely rescheduled Currier to allow Whole Women’s Health, which is still being briefed, to “catch up.” Since a stay requires a showing of a “reasonable probability” of a cert. grant and a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous, there is a good chance we’ll see a grant of at least one of these cases once all the briefing is in.
Friday, October 9, 2015
Jezebel (Oct. 6, 2015): Toot Toot! All Aboard the Crazy Train! Congress Has Big Plans for Planned Parenthood, by Anna Merlan:
The House’s Energy and Commerce Committee voted just now to convene a special, thirteen-member subcommittee to investigate PP...The resolution from the committee says the subcommittee will be investigating “medical procedures and business practices used by entities involved in fetal tissue procurement,” as well as “the practices of providers of second and third trimester abortions, including partial birth abortion and procedures that may lead to a child born alive as a result of an attempted abortion.”
Merlan explains that the whole House will vote tomorrow on whether or not to create the committee. Merlan quotes Dawn Laguens, an Executive Vice President of Planned Parenthood, who states: “This is now a five-ring circus — and counting. This would be the fifth committee to launch an investigation based on false claims that have been totally discredited.”
Sunday, October 4, 2015
Mother Jones (September/October 2015): The War on Women is Over - And Women Lost by Molly Redden:
This is what 2015 looks like: Abortion providers struggle against overwhelming odds to stay open, while women "turn themselves into pretzels" to get to them, as one researcher put it. Activists have been calling it the "war on women." But the onslaught of new abortion restrictions has been so successful, so strategically designed, and so well coordinated that the war in many places has essentially been lost.
Restrictions on the provision of abortion have closed clinics across the nation and create an ongoing struggle for clinics to remain open. This article discusses how state laws have transformed all facets of how women get abortions and have created severe obstacles to getting one.
Friday, October 2, 2015
Friday, May 8, 2015
The New York Times: State Legislatures Put Up Flurry of Roadblocks to Abortion, by Frances Robles:
Oklahoma’s governor this week approved a law extending to 72 hours the mandatory waiting period before a woman can have an abortion. Here in Florida, lawmakers enacted a 24-hour waiting period that requires two separate appointments — one for anultrasound and information about fetal development and another for the actual procedure.
These are just two laws in a surge of bills passed by Republican-controlled state legislatures this year that make it harder for women to have abortions. . . .
Thursday, April 30, 2015
ThinkProgress: Polls Have Been Misleading You About What Americans Actually Believe About Abortion, by Tara Culp-Ressler:
Do you know where most Americans stand on abortion? Thanks to the way that we’ve been polling on the issue for the past several decades, probably not.
Most media coverage on the subject would lead you to believe that abortion evenly splits the nation. According to pollsters, the country has barely budged on this issue since the procedure was first legalized in 1973. The leading polling organizations often refer to Americans’ views on abortion as “closely divided” and say this finding has been “stable” for decades. “The trend lines look about as flat as they can be,” Daniel Cox, the research director at the nonpartisan Public Religion Research Institute, said on the 40th anniversary of Roe v. Wade.
Tresa Undem, who has more than a decade of experience conducting public opinion research for nonprofits, doesn’t think that’s true. . . .
Vox: What Americans Think of Abortion: It's Not So Black and White, by Sarah Kliff:
"Abortion is killing a baby. But I'm not saying it's always wrong."
This was the first thing David King told me when I called him in late March and asked him talk to me about his views on abortion.
King and I didn’t know each other when I called. He’s a former dairy farmer who now works at a Walmart in rural Ohio. A few weeks earlier, he’d been among the 1,067 adults randomly selected for a Vox poll on abortion policy. He gave our pollsters, communications and strategy firm PerryUndem, an answer that interested me. When asked whether he identified as pro-life or pro-choice, he didn’t pick one. He picked both. . . .
TIME - Ideas: We Need to Talk—Really Talk—About Abortion, by Cecile Richards:
America has an urgent need for authentic public dialogue about abortion
When Jemima Kirke, an artist and star of HBO’s Girls, recently talked openly about her personal experience with abortion, media took notice. Her story made it plain that, too often, women’s access to abortion and other reproductive health care is seriously limited due to their economic circumstances and because of the part of the country where they live. Jemima’s story was also a reminder that the ability to decide when or whether to have children is key to women’s opportunity to be financially secure and pursue their dreams. In recent years, spurred on by the reproductive justice movement, young people are refusing to be shamed or silenced about their personal decisions around abortion. . . .
Thursday, April 9, 2015
Alyson Zureick (J.D. 2014, NYU Law) has posted (En)Gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman or Degrading Treatment on SSRN. Here is the abstract:
Monday, March 23, 2015
The Washington Post/AP: House Dems say new abortion language helps Medicare doc deal, by Alan Fram:
Language has been added to an emerging bipartisan deal on Medicare clarifying that the agreement’s abortion restrictions on community health centers are temporary and won’t be inscribed into permanent law, House Democrats said Monday.
The Democrats said they believe the new provisions will ease concerns that have threatened Democratic support for the overall package, which is mostly aimed at protecting doctors who treat Medicare patients from imminent, deep cuts. . . .
Saturday, March 21, 2015
Associated Press: Ala. Abortion Law Lets Judges Appoint Lawyers for Fetuses, by Kim Chandler:
The American Civil Liberties Union on Wednesday asked a federal judge to block an Alabama law that allows a fetus to be represented in court when a minor is seeking judicial permission for an abortion.
While abortion opponents have rolled out a variety of new restrictions on abortion in recent years - including new requirements on clinics and doctors - ACLU staff attorney Andrew Beck said the Alabama law was unique. . . .
Here's the Daily Show's take on it (from January):
Sunday, March 15, 2015
The Christian Science Monitor: McConnell vows: no vote on attorney general until abortion flap solved, by Mark Sappenfield:
Mitch McConnell said Sunday that the Senate would not vote on attorney general nominee Loretta Lynch until another bill has been dealt with first. But that bill appears to have hit an impasse over abortion.
President Obama’s nominee to be the next United States attorney general apparently will have to wait until Senate Democrats and Republicans can figure out abortion.
That could be a long wait.
It’s not that she said something controversial about abortion at confirmation hearings. In fact, the abortion issue has nothing at all to do with Loretta Lynch. . . .
Saturday, March 14, 2015
Politico: How abortion politics scuttled a human-trafficking bill, by Burgess Everett & Seung Min Kim:
It’s a cause any politician would have a hard time opposing: cracking down on human trafficking.
Instead, in a breakdown sensational even by Senate standards, a bill to address the issue is set to go down in a partisan firefight. The cause of the row? Democrats didn’t read the 68-page bill to discover its provisions dealing with abortion, and Republicans didn’t disclose the abortion language when Democratic staffers asked them for a summary of the legislation.
The spectacle has infuriated groups that advocate for cracking down on sex trafficking and left Democrats and Republicans even more skeptical of whether they can trust each other. . . .
Sunday, March 8, 2015
Anti-Choice Legislators Oppose Successful Colorado Contraception Program by Conflating Birth Control and Abortion
NPR: Colorado Debates Whether IUDs Are Contraception Or Abortion, by Megan Verlee:
A popular contraception program in Colorado is receiving criticism from conservative lawmakers who say that the program's use of intrauterine devices, or IUDs, qualify as abortions.
More than 30,000 women in Colorado have gotten a device because of the state program, the Colorado Family Planning Initiative. An IUD normally costs between $500 and several thousand dollars. Through the program women could receive one for free. . . .
State health director Larry Wolk says that the program has largely been a success. "Our teen birth rate has dropped 40 percent over the last four years," says Wolk. "The decline in teen births has been accompanied by a 34 percent drop in abortions among teens." . . .
Oh dear. Contraception/abortion conflation strikes again. Recent research shows that IUDs' primary mechanism is pre-fertilization. For example, this article from American Family Physician advises:
. . . When discussing the mechanism of IUDs as part of the informed consent process, patients may be told that although prefertilization and postfertilization mechanisms may both contribute to the contraceptive effectiveness of IUDs, research suggests that the majority of effects occur prefertilization. . . .
Moreover, regardless of the mechanism, IUDs don't cause "abortions." Doctors define pregnancy as beginning at implantation, not before. That makes sense, especially given that about half of all fertilized eggs never successfully implant. (You don't see anti-choice advocates lamenting the loss of all of these "persons.")