Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Friday, August 29, 2014

Federal District Judge Strikes Down Onerous Texas Abortion Facilities Regulation

The New York Times: Federal Judge Strikes Down Restrictive Texas Abortion Law, by Erik Eckholm & Manny Fernandez:

A federal judge in Austin, Tex., blocked a stringent new rule on Friday that would have forced more than half of the state’s remaining abortion clinics to close, the latest in a string of court decisions that have at least temporarily kept abortion clinics across the South from being shuttered.

The Texas rule, requiring all abortion clinics to meet the building, equipment and staffing standards of hospital-style surgery centers, had been set to take effect on Monday. But in his opinion, Judge Lee Yeakel of the United States District Court in Austin said that the mandate placed unjustified obstacles on women’s access to abortion without providing significant medical benefits. . . .

August 29, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

States Use "Feticide" Laws to Punish Pregnant Women

The Daily Beast: Indiana 'Feticide' Charge Is the Latest Fallout From States' Strict Anti-Abortion Laws, by Sally Kohn:

An Indiana woman has been charged with feticide—and faces decades in jail—for aborting an unwanted fetus, the latest in a string of cases that come close to criminalizing pregnancy itself.

Anyone who doubts that laws restricting abortion rights actually restrict the freedom of women to fundamentally control their bodies and health should look at Indiana. In that state, a 33-year-old woman has been charged with “feticide” after suffering premature delivery and seeking hospital treatment. She becomes the second woman to recently be charged with “feticide” in Indiana. Nationwide, at least 37 other states have similar laws that have restricted the rights of pregnant women under the guise of supposedly protecting fetuses. . . .

August 27, 2014 in Abortion, Fetal Rights, In the Courts, State and Local News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Texas Law Could Force Women to Seek Abortions in Mexico

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

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

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

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

Monday, August 11, 2014

New York Times Editorial on Alabama Admitting Privileges Law Ruling

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

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

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

__________________________________

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

-CEB

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

Saturday, August 9, 2014

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

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

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

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

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

Wednesday, August 6, 2014

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

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

New Judicial Approaches to Abortion Rights

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

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

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

Tuesday, August 5, 2014

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

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

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

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

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

Monday, August 4, 2014

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

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

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

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

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

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

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

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

-CEB (cross-posted on Bill of Health)

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

Federal District Judge Declares Alabama TRAP Law Unconstitutional

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

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

________________________________

The decision is available here.

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

Tuesday, July 29, 2014

Fifth Circuit Panel Rules Mississippi's Admitting Privileges Law Cannot Be Enforced Against State's Sole Remaining Clinic

SCOTUSblog: Last abortion clinic in Mississippi may be spared, by Lyle Denniston:

In a ruling that is likely to mean that the only abortion clinic still operating in Mississippi will not have to close, the U.S. Court of Appeals for the Fifth Circuit ruled on Tuesday that a two-year-old state law regulating clinics cannot be enforced against that facility in the city of Jackson.  The ruling, dividing the panel two to one, is here. . . .

July 29, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Two Federal Appeals Courts Issue Conflicting Rulings on ACA Subsidies

The Hill: ObamaCare subsidies in jeopardy, by Elise Viebeck:

A pillar of ObamaCare was put in jeopardy Tuesday as two appeals courts split on whether the law’s premium subsidies are legal in 36 states. . . .

Politico: How Obama’s court strategy may help save Obamacare, by Josh Gerstein:

Last fall, President Barack Obama and Senate Majority Leader Harry Reid deployed the “nuclear option” to help get three liberal judges onto the D.C. Circuit appeals court.

Tuesday’s ruling on Obamacare is a dramatic example of why they forced the issue.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a 2-1 decision that could gut much of Obamacare by preventing the federal government from offering subsidies to many Americans. The two judges in the majority were appointed by Republican presidents.

But the full court now has seven judges appointed by Democrats and four by Republicans. It took only an hour or so for the administration to announce that it plans to ask the entire bench to review the decision. . . .

____________________________________

The D.C. Circuit's decision is available here.  The Fourth Circuit's decision is  here.

July 22, 2014 in In the Courts, President/Executive Branch | Permalink | Comments (0) | TrackBack (0)

Obama Administration To Revise Accommodation for Certain Religious Non-Profits That Object to Contraception Rule

The Wall Street Journal: Obama Administration to Revise Part of Contraception Rule, by Louise Radnofsky:

Wheaton College Objected to Allowing Contraceptive Coverage to Be Provided by an Insurance Company

The Obama administration said Tuesday it will revise a compromise arrangement for religiously affiliated universities and charities that object to providing contraception in workers' health insurance plans, in response to a Supreme Court order earlier this month.

A majority of Supreme Court justices granted Wheaton College, an Illinois Christian school, a temporary reprieve from contraception coverage requirements in the Affordable Care Act on July 3. That was days after the high court ruled that closely held for-profit companies such as arts-and-crafts chain Hobby Lobby should be allowed to opt out of the provision if their owners have religious objections to certain forms of birth control. . . .

July 22, 2014 in Contraception, In the Courts, President/Executive Branch, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Idaho Asks Ninth Circuit To Reverse Ruling Invalidating 20-Week Abortion Ban

The Oregonian/AP: Idaho defends fetal-pain abortion law in federal court:

A federal judge's ruling striking down Idaho's law banning abortions after 20 weeks of pregnancy should be reversed because criminal charges against the eastern Idaho woman who filed the initial lawsuit had been dismissed, Idaho attorneys said. . . .

July 18, 2014 in Abortion Bans, In the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

U.S. Supreme Court Declines To Review Preliminary Injunction of Wisconsin Admitting Privileges Law

The Huffington Post/Reuters: U.S. Supreme Court Rejects Wisconsin Abortion Case, by Lawrence Hurley:

The U.S. Supreme Court on Monday declined to intervene in the legal fight over a new Wisconsin law that requires any doctor performing an abortion to have privileges to admit patients to a nearby hospital.

The justices turned away the state's appeal of a December 2013 ruling by the 7th U.S. Circuit Court of Appeals that upheld a federal judge's decision to block the law temporarily. . . .

June 23, 2014 in In the Courts, Supreme Court, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2014

Texas Abortion Doctors Get Admitting Privileges Reinstated

The Texas Tribune: 2 Abortion Doctors Settle Suit Over Revoked Privileges, by Becca Aaronson & Alexa Ura:

Two Texas abortion doctors who filed a lawsuit against a Dallas hospital after losing their admitting privileges have settled their case with the hospital, which will reinstate their privileges. . . .

In April, Lamar Robinson, owner of Abortion Advantage, and Jasbir Ahluwalia, the medical director of Routh Street Women’s Clinic, said they received letters from University General Hospital in Dallas revoking their admitting privileges at the hospital after anti-abortion protesters targeted the hospital. . . .

With their admitting privileges to the hospital in place, the two doctors will be able to continue providing abortion services at clinics within 30 miles of the hospital in compliance with new abortion regulations passed last summer by the Republican-led Texas Legislature. . . .

June 17, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

Federal Trial on Alabama TRAP Law Ends

WSFA.com:  Abortion law trial ends, ruling to come next month, by Max Reiss:

Attorneys for three abortion clinics in Alabama and the state of Alabama wrapped up their arguments in a federal trial challenging one of the state's abortion laws Monday.

Judge Myron Thompson told attorneys that they could expect his ruling on the Women's Health and Safety Act of 2013 by the end of July. . . .

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

Monday, June 9, 2014

Wisconsin Department of Justice to Pay Anti-Choice Advocate Thousands for Work as "Expert Consultant" in Trial over Admitting-Privileges Law

The Daily Page: Pro-life advocate Vincent Rue assists state in Wisconsin abortion law defense, by Judith Davidoff:

State Department of Justice lawyers were in court last week defending a 2013 Wisconsin law that requires abortion providers to have admitting privileges at a hospital within 30 miles of their clinic. During the four-day bench trial before U.S. Circuit Judge William Conley, one name came up during the cross-examination of each expert witness for the state: Vincent Rue. . . .

June 9, 2014 in Anti-Choice Movement, In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Sunday, June 8, 2014

Federal Trial on Alabama TRAP Law Opens Window on Abortion Practice in the State

Montgomery Advertiser:  5 things learned in the Alabama abortion trial, by Brian Lyman:

A trial over an Alabama law requiring abortion doctors to have hospital admitting privileges is scheduled to conclude Monday. But the closing arguments may just be the start of a lengthy appeals process, regardless of how U.S. District Judge Myron Thompson rules. . . .

The strategies of both plaintiffs and the state suggest possible issues that may come up on appeal. But testimony has also opened a window on the practice of abortion in the state, and who seeks it. . . .

June 8, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

Federal Judge in Wisconsin TRAP Trial Tells Plaintiff To Make Further Efforts To Seek Admitting Privileges

ABC News:  Judge: Abortion Doctor Must Research Privileges, by Todd Richmond:

A federal judge told a Milwaukee abortion doctor Thursday to renew his efforts to obtain hospital admitting privileges, hinting that it could resolve a lawsuit alleging a Wisconsin law requiring such privileges is unconstitutional.

U.S. District Judge William Conley said he was "bewildered" that Affiliated Medical Services abortion provider Dr. Dennis Christensen and his attorneys haven't received definitive responses from any Milwaukee hospitals. He told them to demand better answers from two facilities where Christensen is seeking admitting privileges. . . .

May 29, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

What's at Stake in the Trials on Admitting Privileges Laws

Slate: Caught in a TRAP, by Emily Bazelon:

If an Alabama law and others like it stick, abortion clinics will disappear from swaths of the U.S. map.

Abortion is on trial this week in Alabama. Technically speaking, the witnesses are appearing before federal District Judge Myron Thompson to discuss a new state law that requires doctors who perform abortions to have admitting privileges at local hospitals. That sounds reasonable, I know, but it isn’t, and it’s also not what’s at stake. This trial is about whether poor women in red (and even purple) states will continue to have access to abortion, or whether some states will succeed in shutting down every clinic within driving distance, all in the name of protecting women (from themselves). . . .

May 28, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)