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
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 2, 2015
Daily Camera: Battle for Women's Reproductive Rights Goes on Every Day, by K.C. Becker:
State legislatures across the country have become popular battlegrounds for limiting reproductive freedom for women. Anti-choice activists have been launching well-coordinated assaults in state after state by churning out bills designed to indirectly limit or eliminate a woman's legal right to get an abortion. These new laws shut down clinics by putting new requirements and restrictions on the clinics, doctors, or patients.
Becker predicts that some of these restrictions will eventually be declared unconstitutional. "But rest assured" she warns, "that they will be coming back, across the country, with new variations on an old theme." Becker reminds us that the battle did not end with Roe v. Wade.
Friday, May 8, 2015
The Daily Beast: Chile’s Shocking DIY Abortion Ad Campaign, by Nina Strochlic:
“It’s important that you find a long and steep set of stairs,” a young, brunette woman says in Spanish to a hand-held camera. She walks up steps of an anonymous building. “Make sure there’s no security cameras, so no one can see you.” . . .
“In Chile an accidental abortion is the only kind of abortion that is not considered a crime,” the video displays in bold type. The satirical videos are part of a campaign launched last month called Abortion Tutorials. It was conceived for theMiles Organization, a reproductive rights NGO, by advertising agency Grey Chile. The groups are hoping the Chilean government will be shamed into reforming what is the strictest abortion law in the world. . . .
TIME: How a New Study on Premature Babies Could Influence the Abortion Debate, by Eliza Gray:
A new study showing that a tiny percentage of extremely premature babies born at 22 weeks can survive with extensive medical intervention could change the national conversation about abortion, though the research is unlikely to have a major effect on women’s access to abortions in the short term.
Pro-life advocates said the study—which was published by theNew England Journal of Medicine on Wednesday and found that 3.5% percent of 357 infants born at 22 weeks could survive without severe health problems if hospitals treated them—could benefit the pro-life movement by sparking discussion about the viability of premature babies. . . .
This article correctly points out that the study in no way contradicts or forces reconsideration of Supreme Court precedent governing pre- and post-viability abortions. Unlike what some articles suggest, the Supreme Court has never set viability at a specific point in pregnancy (even in Roe), but rather has left the determination of viability to the provider to determine based on the individual facts surrounding each pregnancy. Viability depends on many factors, including the type of medical facilities available.
Thursday, April 30, 2015
RH Reality Check (4/17): Laws Banning Abortion Procedure ‘Substituting Political Decisions for Medical Decisions’, by Teddy Wilson:
Oklahoma Gov. Mary Fallin (R) signed a bill into law Monday that criminalizes a medical procedure used during second-trimester abortions and for miscarriage management.
That came weeks after Kansas Gov. Sam Brownback (R) signed similar legislation, and now reproductive rights advocates are raising serious concerns about the lasting implications of these new, radically anti-choice laws.
“With this law, Oklahoma has joined Kansas in an alarming trend toward substituting politicians’ agendas for the judgment and expertise of doctors, and then threatening those doctors with criminal charges if they disagree,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. . . .
The Hill - Congress blog (4/17): Political attacks on abortion legislate bad medicine, by Vanessa Cullins, M.D., M.P.H., M.B.A.:
The latest wave of state legislation to restrict abortion access is based on bad medicine and would prevent doctors from providing medical care based on their judgment of what’s best for each patient. . . .
It is unacceptable for politicians to force doctors, under penalty of law, to go against our training and expertise. . . .
Metro.co.uk: Pregnant girl, 10, ‘denied life-saving abortion after being raped by stepfather’, by Harry Readhead:
A 10-year-old girl who was raped by her stepfather has allegedly been denied the abortion she desperately needs.
The child was found to be 21 weeks pregnant after arriving at hospital in Asunción, Paraguay, this month complaining of stomach pains.
Amnesty International reports that the girl’s pregnancy came as a result of being raped by her stepfather, but she has allegedly been denied a life-saving abortion and sent to a centre for young mothers instead. . . .
ThinkProgress: In Bizarre Stunt, Governor Pretends To Sign Extreme Abortion Ban For Group Of Teenagers, by Tara Culp-Ressler:
Three weeks ago, Kansas became the first state in the country to ban a specific type of second-trimester abortion procedure, after Gov. Sam Brownback (R) signed a so-called “dismemberment” ban in a closed-door ceremony. But Brownback isn’t stopping there.
According to a photo tweeted out by Brownback’s office, the governor was flanked by large photos of fetuses as he approved Senate Bill 95 at the beginning of April. A few days later, Oklahoma followed in Kansas’ footsteps and approved an identical measure. Perhaps seeking to solidify Kansas’ status as the first state to venture into this area, Brownback is now taking it a step further.
On Tuesday, the governor traveled to four different cities across Kansas to reenact the signing of SB 95 in public ceremonies that teenagers could attend. The events took place at a Catholic church education building and three Catholic high schools. . . .
Thursday, April 9, 2015
U.S. News & World Report: Oklahoma Approves Ban on Second-Trimester Abortion Method, by Sean Murphy:
Oklahoma would ban a common second-trimester abortion procedure that critics describe as dismembering a fetus under a measure that lawmakers overwhelmingly approved Wednesday, a day after Kansas became the first state to prohibit the same procedure.
The Senate voted 37-4 for the bill, which now goes to Republican Gov. Mary Fallin. She has not said whether she will sign it, but she has previously signed other anti-abortion measures. . . .
The New York Times: Kansas Limits Abortion Method, Opening a New Line of Attack, by Erik Eckholm & Frances Robles:
Kansas on Tuesday became the first state to sharply restrict or alter the most common technique used for second-trimester abortions, opening a new, emotionally charged line of attack by anti-abortion forces who hope to take it swiftly to other states. . . .
The New York Times (editorial): Kansas Tries to Stamp Out Abortion:
During the past four years, the state of Kansas has become ground zero in the war to criminalize all abortions, and in the process to remove a woman’s ability to control what happens in her own body.
Under Gov. Sam Brownback, a staunch foe of a woman’s right to choose, Kansas’s increasingly hard-line conservative lawmakershave enacted more than two dozen restrictions curtailing women’s reproductive freedom. . . .
On Tuesday the state went still further, becoming the first to ban the safest and by far the most common method of ending a second-trimester pregnancy, dilation and evacuation, which involves dilating the cervix and removing the fetus, often in parts. (On Wednesday, a similar bill passed the Oklahoma Legislature, and awaits the governor’s signature. Bills are also pending in Missouri and South Carolina.) . . .
Wednesday, March 25, 2015
The Blade: Ohio House votes across party lines for 'heartbeat' abortion bill, by Jim Provance:
The Ohio House today for the second time voted across party lines for a bill that would all but ban an abortion as soon as a fetal heartbeat is detectable, as early as six weeks. . . .
The Wichita Eagle: Kansas lawmakers pass nation’s first ban on abortion procedure, by Brad Cooper:
The Kansas Legislature on Wednesday became the first in the country to pass a ban on a procedure often used in the second trimester of pregnancy. . . .
The Kansas House approved SB 95 on a 98-26 vote. The act now goes to Republican Gov. Sam Brownback, who has promised to sign it into law. . . .
While the bill targets a procedure, abortion-rights supporters believe it aims to limit second-trimester abortions with a long-term goal of banning all abortion.
The legislation isn’t “meant to correspond to medical reality,” said Caitlin Borgmann, a constitutional law professor at the City University of New York. . . .
Sunday, March 8, 2015
Sinn Féin drops opposition to abortion at Derry congress
The Guardian: Sinn Féin has dropped its historic opposition to abortion at its annual congress held in Derry, by Henry McDonald:
The party voted this weekend to support terminations in limited cases, such as pregnant women with fatal foetal abnormalities. This involves women whose babies will be born dead and who have to either go full term in Ireland or seek abortions across the Irish sea in Britain. . . .
ThinkProgress: West Virginia Republicans Override Their Governor To Pass 20-Week Abortion Ban, by Tara Culp-Ressler:
On Friday, the West Virginia legislature voted to override their governor’s recent veto of a 20-week abortion ban, ensuring that the restriction will become law. Cloaked in the language of “fetal pain,” this particular policy continues to gain momentum; West Virginia will join the 10 other states that currently ban abortions after this point. . . .
Wednesday, March 4, 2015
The Huffington Post: Scott Walker Pumps Up Anti-Abortion Cred By Backing 20-Week Ban, by Lydia O'Connor:
Days after coming under conservative fire for making vaguely pro-choice comments, Wisconsin Gov. Scott Walker (R) released a letter reaffirming his anti-abortion bona fides and endorsing a ban on the procedure after 20 weeks of pregnancy. . . .
The letter takes a much more vigorously conservative tone than Walker did on “Fox News Sunday” this past weekend. . . .
Wednesday, February 25, 2015
MetroNews: Fetal pain abortion bill heads to Governor, by Hoppy Kercheval:
The state Senate Wednesday passed 29-5 legislation banning abortions after 20 weeks. The bill has already cleared the House and will next go to Governor Tomblin, who vetoed a similar bill last year. . . .
Sunday, February 22, 2015
PBS: Kansas may be the first state to ban common abortion procedure, by Marina Lopes:
Kansas’ state senate on Friday approved a bill banning an abortion procedure commonly used to terminate pregnancies in the second trimester, a victory for anti-abortion activists in what could become the United States’ first ban of this method.
The procedure, known as dilation and evacuation, involves dilating the woman’s cervix and using tools to remove the fetus and any remaining tissue from the uterus. Abortion rights activists say that the procedure, which is used in about 8 percent of abortions in Kansas, is the safest and cheapest option for women looking to terminate pregnancies in the second trimester. . . .
When the Supreme Court upheld the federal "Partial Birth Abortion Ban Act" in Gonzales v. Carhart, the majority opinion emphasized that "[a]lternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe [non-intact] D&E." Justice Ginsburg, however, pointed out the disingenuousness of banning intact D&E on the grounds of its supposed relative gruesomeness. She wrote in her powerful dissent:
As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. But why not, one might ask. Nonintact D&E could equally be characterized as "brutal" . . . . "[T]he notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."
As Justice Ginsburg recognized, allowing bans on abortion procedures because they are "gruesome" is a slippery slope with no clear end. Kansas's proposed ban isn't about the gruesomeness of a particular procedure. It's about banning abortions, period.
Wednesday, February 11, 2015
ThinkProgress: The Massive Push To Restrict Abortion In 2015, by Tara Culp-Ressler:
On the heels of a record-breaking number of new abortion restrictions that have been enacted over the past four years, state lawmakers are continuing to push forward with a stringent anti-abortion agenda in 2015.
By last week, states had already introduced more than 100 bills intended to regulate access to abortion, according to researchers at the Henry J. Kaiser Family Foundation. Lawmakers are working to restrict the procedure in more than half the states in the country . . . .
Thursday, January 22, 2015
NPR: 30-Year Sentence Lifted For Woman In El Salvador Abortion Case, by Jason Beaubien:
Seven years ago, Carmen Guadalupe Vasquez Aldana went to jail in El Salvador. She was initially charged with abortion but prosecutors elevated the charge to aggravated homicide, arguing that the fetus was viable. Vasquez always contended that she did not have an abortion but had lost her unborn son due to medical complications late in the pregnancy.
On Wednesday, El Salvador's Legislative Assembly approved a recommendation by the country's high court that Vasquez be exonerated. That's a remarkable turn of events in a country with one of the strongest anti-abortion laws in the world. Even when the health of the mother is at risk, abortion is illegal. . . .
The Washington Post - The Fix (blog): How Republicans won by losing on an abortion vote, by Chris Cillizza:
For the last several years, congressional Republicans have pursued what can be described as a short-term gain, long-term pain strategy. That is, the GOP-led House has championed, passed or, just as often, not passed legislation that pleases its base and the group of three dozen or so of its members who stake out the furthest territory on the right of ideological spectrum. That's been a fine thing for those members, most of whom sit in districts in which the only threat of losing comes in a primary, but it has been far more problematic for the overall brand of the party as it tries to recapture the White House in 2016. Think immigration reform.
On Wednesday, House Republicans -- whether purposely or by accident -- reversed that strategy, choosing some short-term pain in exchange for at least the possibility of long-term gain. . . .
The Washington Post: Abortion bill dropped amid concerns of female GOP lawmakers, by Ed O'Keefe:
House Republican leaders abruptly dropped plans late Wednesday to vote on an anti-abortion bill amid a revolt by female GOP lawmakers concerned that the legislation's restrictive language would once again spoil the party's chances of broadening its appeal to women and younger voters.
In recent days, as many as two dozen Republicans had raised concerns with the "Pain Capable Unborn Child Protection Act" that would ban abortions after the 20th week of a pregnancy. Sponsors said that exceptions would be allowed for a woman who is raped, but she could only get the abortion after reporting the rape to law enforcement.
A vote had been scheduled for Thursday to coincide with the annual March for Life, a gathering that brings hundreds of thousands of anti-abortion activists to Washington to mark the anniversary of the Supreme Court's 1973 Roe v. Wade decision that legalized abortion. . . .
CNN: House GOP leaders cave on abortion bill, by Deirdre Walsh:
Mark it down as a rare win for House GOP moderates. After scrambling into the evening on Wednesday, House Republican leaders decided to scrap a vote on a controversial anti-abortion measure scheduled to coincide with an annual gathering of anti-abortion advocates on Thursday because they couldn't round up enough support. . . .
The "Pain Capable Unborn Child Protection Act," is a bill banning so called "late-term abortions" -- those involving procedures for women who are beyond 20 weeks into their pregnancy. Several House GOP women protested language in the bill that requires those women who seek an exception to the ban because they were raped have to back up their claim with a police report. A similar measure has passed the House in 2013, but this time some female members -- including some who voted for it last time -- are pushing for that requirement to be stripped out. . . .
This is what happens when opponents of abortion stray from a simplistic but consistent position that all abortion is murder. They wade into a messy quagmire of exceptions -- which women "deserve" to have an abortion? -- a discussion that only serves to highlight that they do not, in fact, hold a consistent position that an embryo or fetus is a person. (The discredited claim that a fetus can perceive pain at 20 weeks indeed was supposed to cement the fetus's status as a person and justify the ban in question.) I've written more about this in the following articles: The Meaning of 'Life': Belief and Reason in the Abortion Debate and Roe v. Wade's 40th Anniversary: A Moment of Truth for the Anti-Abortion-Rights Movement?