Thursday, January 22, 2015
JURIST (commentary): Fourth and Fifth Circuits Confront Abortion Exceptionalism, by Caitlin Borgmann:
Federal Courts of Appeals have recently addressed two important abortion cases, either of which could end up before US Supreme Court. Last week, the US Court of Appeals for the Fifth Circuit heardoral arguments on the merits of a Texas law that requires abortion facilities to meet hospital-like building and construction standards. The US Court of Appeals for the Fourth Circuit issued a decision[PDF] in late December striking down a North Carolina pre-abortion ultrasound law that requires abortion providers to perform a sonogram before an abortion and to display and describe it to the woman. Each case is important for abortion rights in different ways, but a common theme the cases raise is the question of abortion exceptionalism: whether courts should treat abortion as an exceptional case when states purport to regulate it for health and safety reasons (in the Texas case) or when state restrictions encroach on the right against compelled speech (in the North Carolina case) . . . .
Thursday, January 8, 2015
JURIST: Federal judge enters final ruling on Indiana abortion clinic law, by Steven Wildberger:
Judge Jane Magnus-Stinson of the US District Court for the Southern District of Indiana[official website] entered a permanent injunction Wednesday barring Indiana law IC 16-18-2 [text], which would redefine what qualifies as an abortion clinic and shut down Planned Parenthood's Lafayette facility. The law was barred for imposing rules on facilities that provided only medical abortions that would not have been imposed on physicians' offices providing the same service, violating the Equal Protection Clause of the Fourteenth Amendment [text]. . . .
Wednesday, January 7, 2015
The New York Times: Texas Abortion Clinic Rules Tested in Appeals Court, by Erik Eckholm:
Lawyers for abortion clinics squared off with Texas state attorneys in a federal appeals court here on Wednesday, arguing over the constitutionality of stringent abortion clinic rules that would force more than half the remaining abortion providers in Texas to close.
But more is at stake than whether large portions of South and West Texas will be left with no abortion clinics, forcing some women to drive hundreds of miles for an abortion, for safety reasons that doctors and clinic owners call a pretense.
The case argued here — along with others arising from the hundreds ofabortion restrictions adopted by more than half of the states in recent years — poses issues that are likely to end up before the Supreme Court in the next year or two, many legal experts say . . . .
Al Jazeera America: Texas abortion clinics: How far is too far to drive?, by Michael Keller & Marisa Taylor:
Is 150 miles too far to drive in order to get an abortion? In some parts of Texas, that distance could get a lot longer, and it’s up to a federal appeals court to decide whether that places too much of a burden on women seeking to end their pregnancies. . . .
“It’s always been a little bit unclear exactly what constitutes an ‘undue burden,’” said Caitlin Borgmann, a professor at CUNY School of Law with expertise on reproductive rights law. . . .
“If women can’t access abortions, then the right is meaningless,” Borgmann said. “This very much goes to the core of what it means to be a constitutional right to abortion.”
The Al Jazeera America story includes interactive maps that show what parts of Texas would be left without any available abortion clinics if the ambulatory surgical center requirement is upheld.
Saturday, December 27, 2014
4th Circuit Panel Unanimously Rules NC Pre-Abortion Ultrasound Law Unconstitutional; State Vows to Seek Supreme Court Review
Slate: North Carolina’s Outrageous Abortion Requirement Is Struck Down, by Dahlia Lithwick:
A conservative judge sticks up for medical ethics and the First Amendment.
A panel of the 4th Circuit Court of Appeals voted today to strike down a highly controversial North Carolina law requiring doctors and ultrasound technicians to perform an ultrasound, display the image of the sonogram, and specifically describe the fetus to any pregnant woman seeking an abortion, even if the woman actively “averts her eyes” and “refuses to hear.” The American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood Federation of America, and others challenged the law, which was enjoined last year by a lower federal court.
Today, in a unanimous decision authored by Judge J. Harvie Wilkinson III, a three-judge panel affirmed a lower court’s determination that the law is a compelled speech provision that violates the First Amendment rights of providers. . . .
The Washington Post: N.C. abortion restriction violates free speech, judges rule, by Sandhya Somashekhar:
. . . Several other states, including Virginia, have ultrasound requirements, with some requiring women to undergo internal “transvaginal” ultrasounds before obtaining an abortion. Only a handful, however, have gone so far as North Carolina, and courts have had mixed opinions about such laws,upholding them in Texas and striking them down in Oklahoma.
On Monday, the North Carolina attorney general’s office said they would ask the Supreme Court to take up the matter to resolve the conflicting opinions in Texas and Richmond. . . .
The opinion is available here.
Monday, December 8, 2014
The Salt Lake Tribune/AP: Religious nonprofits challenge birth-control coverage in health law. by Kristen Wyatt:
Faith-based nonprofit organizations that object to covering birth control in their employee health plans are in federal court Monday to challenge a birth-control compromise they say still compels them to violate their religious beliefs.
The plaintiffs include a group of Colorado nuns and four Christian colleges in Oklahoma. They are already exempt from covering contraceptives under the federal health care law.
But they say the exemption doesn’t go far enough because they must sign away the coverage to another party, making them feel complicit in providing the contraceptives. . . .
Sunday, December 7, 2014
ACLU press release: ACLU Files Suit on Behalf of Mother Fired for Breastfeeding at Work:
DENVER – The American Civil Liberties Union and the ACLU of Colorado filed a lawsuit yesterday on behalf of Ashley Provino, a Grand Junction, Colo. woman who was fired from her job, in violation of state and federal anti-discrimination laws, for asserting her right to pump breast milk at work.
Provino, a new mother, requested permission from her employer, Big League Haircuts, to take a short break every four hours in the back room of the hair salon to express breast milk, as is her right under state and federal law. The company denied Provino’s request and cut her hours dramatically. When Provino requested to be returned to a full-time schedule with breaks so she could pump breast milk and continue breastfeeding her child, she was fired.
Colorado’s Workplace Accommodations for Nursing Mothers Act, passed by the state legislature in 2008, unequivocally recognizes the societal and health benefits of breastfeeding and requires employers to make reasonable accommodations to allow new mothers to express milk at work. The ACLU complaint invokes the 2008 statute, as well as federal laws that prohibit sex discrimination, pregnancy discrimination and retaliation for protesting such discrimination.
“The recently enacted laws guaranteeing the right to pump at work are designed to make sure that women like Ashley Provino can do what they believe and what medical professionals agree is best for their babies, while still keeping their jobs,” said Galen Sherwin, senior staff attorney with the ACLU Women’s Rights Project. “No woman should face retaliation for asserting her rights under these laws.”
Women who breastfeed must pump milk regularly throughout the day to ensure that they will keep lactating. A broad consensus exists among medical and public health experts that breastfeeding is optimal for infants for a year (or longer) following birth, and that breastfeeding has broad developmental, psychological, social, economic and environmental benefits.
“Discrimination against breastfeeding mothers in the workplace is not only illegal, it is also bad for Colorado families and businesses, because it forces women out of the workplace,” said ACLU of Colorado cooperating attorney Paula Greisen of King Greisen LLP.
In September 2012, the ACLU of Colorado and the ACLU Women’s Rights Project successfully negotiated a settlement with a Jefferson County charter school on behalf of Heather Burgbacher, a teacher who lost her job after she requested accommodations to express breast milk at work. The ACLU of Colorado also worked with DISH Network earlier this year to vastly improve accommodations for nursing mothers at the company’s corporate headquarters in Englewood following complaints from employees that the conditions provided by the company lacked adequate space and privacy.
The complaint is available at:
More information on this case is available at:
Thursday, November 20, 2014
The Jackson Clarion-Ledger: 5th Circuit refuses to reconsider Mississippi's abortion law, by Jimmie E. Gates:
The full 5th Circuit U.S. Court of Appeals has refused to reconsider a ruling blocking Mississippi from enforcing a law requiring doctors who perform abortions in the state to have admitting privileges at local hospitals.
In late July, a panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 that the law is unconstitutional because it would close Mississippi's only abortion clinic. . . .
The panel decision was notable for ruling that a state may not rely on the availability of abortion in neighboring states in arguing that its own restrictions do not impose an undue burden. In this case, the admitting privileges law threatened to shut down Mississippi's last remaining abortion clinic. Professor Jonathan Will and I exchanged views on the panel decision in August.
Shoddy "Factfinding" on Abortion Is Pervasive in State Legislatures, and Often Finds Its Way to the Courts
RH Reality Check: How Shoddy Evidence Finds Its Way From State Legislatures to the U.S. Supreme Court, by Sharona Coutts & Sofia Resnick:
If you were a South Dakota legislator looking for expert evidence on how abortion affects women, the obvious choice would be an electrical engineer based in Illinois.
It’s a pattern that is all too familiar in state legislators around the United States, said Caitlin Borgmann, a law professor at the City University of New York who is an expert in the role of courts and legislatures in protecting constitutional rights. . . .
Check out RH Reality Check's False Witnesses Gallery:
Each member of the False Witnesses gallery has pushed false information designed to mislead the public, lawmakers, and the courts about abortion. RH Reality Check analyzed scores of public records, contracts, public statements, and research articles, and identified their key falsehoods in order to set the record straight. . . .
Tuesday, November 4, 2014
Oklahoma Supreme Court Temporarily Blocks Admitting Privileges Law and Medication Abortion Restrictions
The New York Times: Oklahoma Supreme Court Blocks 2 Abortion Laws, by Timothy Williams:
The Oklahoma Supreme Court on Tuesday blocked two new laws that critics say may have made it difficult for women to obtain abortions in the state.
The measures, approved by the State Legislature and signed into law by Gov. Mary Fallin, took effect Nov. 1.
But in a unanimous decision released Tuesday, the State Supreme Court voted to prevent enforcement of the rules until lawsuits challenging their constitutionality are settled by a lower court. . . .
Friday, October 24, 2014
RH Reality Check: Oklahoma Court Refuses to Block Admitting Privileges Requirement, by Jessica Mason Pieklo:
Oklahoma can enforce its new anti-abortion admitting privileges requirement beginning November 1, a state district court judge ruled Friday.
SB 1848 mandates all reproductive health care clinics have a physician with admitting privileges at a local hospital on-site when abortion procedures are performed. . . .
Friday, October 3, 2014
Fifth Circuit Panel Allows Texas Ambulatory Surgical Center Law To Take Effect, Shutting Down Most of State's Clinics
The New York Times: Reversal Allows Abortion Law, Forcing 13 Texas Clinics to Close, by Manny Fernandez:
Thirteen abortion clinics in Texas were forced to close immediately after a federal appellate court on Thursday sided with Texas in its yearlong legal battle over its sweeping abortion law and allowed the state to enforce one of the law’s toughest provisions while the case was being appealed.
The decision by a three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, will have a far-reaching effect on abortion services in Texas, lawyers for abortion providers said. The ruling gave Texas permission to require all abortion clinics in the state to meet the same building, equipment and staffing standards as hospital-style surgical centers, standards that abortion providers said were unnecessary and costly, but that the state argued improved patient safety. . . .
Nearly two-thirds of abortion clinics in Texas must close immediately after a federal appeals court ruled Thursday that the state could enforce its law requiring those facilities to be built to the same stringent standards as hospitals.
The requirement is part of a sweeping piece of legislation called House Bill 2, which includes several measures that undermine women’s access to abortion. The mandate was struck down in late August by a federal judge in Austin, who ruled that it was unconstitutional because it put an undue burden on women seeking healthcare. He put the requirement on hold while the state appealed. . . .
The decision is available here.
Friday, September 12, 2014
Bloomberg: Texas Claims Abortion Restrictions Don’t Pose Burden, by Daniel Lawton & Laurel Brubaker Calkins:
A Texas law restricting abortions which would leave open only seven or eight clinics doesn’t place an undue burden on women’s rights, a state official argued in a bid to enforce a law previously ruled unconstitutional.
Texas asked the U.S. Court of Appeals in New Orleans today to let it require that abortion clinics meet the same construction standards as outpatient surgical centers while the court considers its appeal. A lower court threw out the law as unconstitutional. Opponents argued that enforcement of the overturned law would cause more than a dozen clinics to close overnight. The three-judge panel didn’t immediately rule on the Texas request. . . .
NPR: A Doctor Who Performed Abortions In South Texas Makes His Case, by Wade Goodwyn:
In a Brownsville family clinic, a powerfully built, bald doctor treats a never-ending line of sick and injured patients. He has been practicing for nearly four decades, but family medicine is not his calling.
"For 35 years I had a clinic where I saw women and took care of their reproductive needs, but mostly terminating pregnancies," Dr. Lester Minto says.
He seems an unlikely doctor to perform abortions. The son of an Army officer, he grew up in a deeply religious family in rural Texas. His career path was shaped by an experience in medical school in the early '70s. . . .
Monday, September 8, 2014
The National Law Journal: Next Wave for Abortion Law Courts, by Tony Mauro:
Judges struggle to define "undue burden" standard
Slowly but surely, a new wave of abortion-related litigation is making its way to the U.S. Supreme Court, with the ultimate outcome uncertain.
A stop-and-start round of rulings and stays that blocked enforcement of new restrictions on abortion clinics in Texas last week was just the latest sign that, 41 years after Roe v. Wade, courts are still grappling with the issue. . . .
The National Law Journal (Op-Ed): Rulings Illuminate Abortion Standard, by Caitlin Borgmann:
With scant guidance from Supreme Court, lower courts are grappling with "undue burden" test
Onerous restrictions on abortion facilities are prompting lower courts to sit up and take notice. Late last month, federal judges in Texas and Louisiana blocked such laws from taking effect, at least temporarily.
Some courts, in evaluating the constitutionality of these laws, are interpreting the governing undue-burden standard — the U.S. Supreme Court's governing standard for the constitutionality of abortion regulations — in new ways that meaningfully consider the facts and purposes underlying the laws, as well as their real-world effects. The Supreme Court justices would do well to adopt these interpretations when they finally address one of these restrictions. . . .
St. Louis Public Radio: Legislator Tells Federal Appeals Court Why He Objects To Birth-Control Coverage, by Jo Mannies:
The lawyer for state Rep. Paul Wieland, R-Imperial, predicts that his suit against mandated contraceptive coverage will help launch an avalanche of court challenges to the Affordable Care Act’s provision requiring insurance companies to offer such benefits.
But first Wieland needs to persuade a federal appeals court to reinstate his case. A lower court had tossed it out. . . .
Thursday, September 4, 2014
The New York Times: Texas Abortion Clinic to Reopen After Ruling, by Erik Eckholm:
An embattled abortion clinic in McAllen, Tex., which was the last provider of abortions in the vast Rio Grande Valley when new state restrictions forced it to stop last fall, will start operating again by this weekend, its owner said Wednesday, after last week’s favorable decision by a federal judge.
But whether the clinic, a branch of Whole Woman’s Health, and at least a dozen others in the state can remain open for long will be determined by a federal appeals court, which has scheduled a hearing for Sept. 12 in New Orleans. . . .
Monday, September 1, 2014
MSNBC: Fragile victories for abortion access in the South, by Irin Carmon:
In a single weekend, with temporary wins for abortion providers in Louisiana and Texas, one fact became ever clearer: The federal courts are the only thing standing between conservative lawmakers and a woman’s right to an abortion. For now, the news is good for abortion access in the region, but it is a fragile shield – one that may be breached in a matter of days. . . .
The Wall Street Journal: Judge Blocks Enforcement of New Louisiana Abortion Law, by Cameron McWhirter:
Restrictive New Law Goes Into Effect Monday, But Doctors, Clinics Can't Be Penalized for Not Complying
A federal judge in Baton Rouge, La., on Sunday night issued a temporary restraining order blocking the enforcement of a Louisiana abortion law just hours before it was to take effect.
The law, passed overwhelmingly this year by the state Legislature, requires all abortion doctors in the state to have admitting privileges at a hospital within 30 miles of the clinic where they work. If doctors at clinics don't comply, the clinic can be closed. . . .
Friday, August 29, 2014
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. . . .
Wednesday, August 27, 2014
The Daily Beast: Indiana 'Feticide' Charge Is the Latest Fallout From States' Strict Anti-Abortion Laws, by Sally Kohn:
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. . . .
Tuesday, August 12, 2014
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. . . .