Thursday, June 22, 2017
Texas Observer (Jun. 20, 2017): How Texas' Anti-Abortion Lawmakers Win Even While Losing in Court, by Sophie Novack:
Earlier this month, Texas Governor Greg Abbott signed Senate Bill 8 into law, "an omnibus measure that mandates burdensome clinic regulations and outlaws a safe, common abortion procedure" known as dilation & evacuation, or D&E. SB 8 is the most sweeping set of restrictions on abortion care signed into law in Texas since House Bill 2 in 2013, culminating in last year's Whole Woman's Health v. Hellerstedt ruling by the U.S. Supreme Court that struck down two of the bill's major provisions. A lawsuit against SB 8 is expected later this summer.
Novack argues that while abortion-rights advocates ultimately claimed victory in the courts over HB 2, the law "forced the closure of more than half the state’s abortion clinics, and only three have reopened since." The main issue for abortion-rights advocates, Novack says is that "legislation often moves faster than the courts, and SB 8 could wreak similar havoc on the abortion provider community in Texas.
“We’re looking at again the possibility of clinic closures and other restrictions that force women to leave the state if they need abortion care,' said Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights, which filed the lawsuit against HB 2 and has pledged to fight SB 8. 'In terms of access on the ground, this presents a huge threat to Texas.”
The major provisions at issue in SB 8 are a requirement that fetal remains be buried or cremated, and a ban on D&E, the most common form of second-trimester procedure. Abortion-rights advocates take some comfort in knowing that both of these provisions have been successfully challenged in court, but if either provision goes into effect, clinics could face closure for failure to comply with the law.
Texas Right to Life pushed the D&E ban, while Texas Alliance for Life championed the fetal burial/cremation requirement. Each group has a different strategy: Texas Right to Life favors pushing the D&E ban to the Supreme Court, while Texas Alliance for Life favors "a more incremental approach" that chips away at access until the Supreme Court becomes less favorable to abortion rights. Said Joe Pojman, executive director of Texas Alliance for Life: "it’s very clear now that [Justice Kennedy] will not uphold any state or federal provision that makes abortion less accessible, that’s the unfortunate reality."
In January, a federal judge blocked new Texas regulations that would’ve required burials for fetal remains. Courts have blocked D&E abortion bans in four other states. While it remains to be seen how courts will decide on SB 8, the battle will be long, and if it plays out like HB 2, there could be lasting consequences.
Friday, October 28, 2016
ABA Journal (Oct. 20, 2019): Kansas Attorney General Apologizes for Dred Scott Citation in Abortion Brief, by Debra Cassens Weiss:
Derek Schmidt, the Attorney General of Kansas, has apologized for an egregious lack of taste and good judgment in citing the United States Supreme Court's abominable Dred Scott decision in the brief he submitted to the Kansas Supreme Court court defending his state's restrictions on abortion. The case was cited as support for banning all second-trimester abortions, a ban the lower courts reasoning was in violation of the Kansas Constitution's Bill of Rights. Schmidt argued that the use of language from the Declaration of Independence in Kansas's Bill of Rights regarding equality and inalienable rights is, like the Declaration itself, "merely aspirational." Schmidt cited Dred Scott, the case denying African-Americans citizenship, in support of that proposition.
Sunday, October 23, 2016
New York Times (Oct. 18, 2016): A Complex Case Tests New York State’s Expanded Definition of Parenthood, by Sharon Otterman:
New York has had an expanded definition of parenthood since August. The new test is whether a couple intended to have and raise a child together. It was meant "to provide equality for same-sex parents and the opportunity for their children to have the love and support of two committed parents.” Now the new test is being applied in a difficult case involving a lesbian couple's break-up and the boy whom one of the women legally adopted.
Circe Hamilton applied to adopt a boy from Ethiopia in 2009. Her partner Kelly Gunn intended to adopt the boy as a second parent. Before the adoption was finalized in 2011, however, the couple broke up but remained friends. Hamilton, overwhelmed by the challenges of motherhood, called upon Gunn to help her with childcare, shelter and even employment. Now that Hamilton wants Gunn out of her and her son's lives, Gunn is arguing that the adoption would never have happened without the couple's mutual efforts. Hamilton, however, is arguing that she intended to parent alone.
The judge in the case must decide whether the involvement of Gunn in the boy's life amounts to parentage or just the benevolence of a trusted friend. Several questions are guiding the proceedings, now before the Supreme Court in New York County: "How formalized was the relationship between Ms. Gunn and [the boy]? What did he think Ms. Gunn’s role was? Did Ms. Gunn assume the duties of a parent? What would be the impact on[the boy] if their relationship ended?"
The case is particularly fraught because now Hamilton wants to move to London with the boy. For now, the court has ordered the boy's passport confiscated so that Hamilton does not abscond with him.
Tuesday, August 16, 2016
The Daily Beast (August 4, 2016): SCOTUS Denies Trans Teen’s Use of Boys Bathroom, by Samantha Allen:
Gavin Grimm, a 17 year old transgender boy, had his right to use the boy's bathroom at school placed on "temporarily on hold" by SCOTUS. In a 5-3 decision, the Court granted an emergency stay of a 4th Circuit ruling allowing Gavin to use the boys room while the Court decides whether or not to grant review of the case. If Court denies the request, the Fourth Circuit's decision will go into effect. If it grants review, Gavin will have to wait several months for the case to be briefed and argued before the Court issues a decision. Either way, his lawyers are upset that their client has to use a single stall bathroom that no other student in the school is required to use until the Court decides whether to take the case. Set against a slew of similar cases across the U.S., this case is sadly not the first of it's kind, nor does it look like it will be the last. Gavin's lawyers stated:
“I woke up this morning and couldn’t believe that we had to tell our client that the court considered it an ‘emergency’ to stop him from using the restroom,” said Chase Strangio, the ACLU staff attorney who started the #LoveForGavin hashtag.
Thursday, July 7, 2016
Reprohealth Law (June 15, 2016): Forced Sterilization Case Against Bolivia: Expert Testimony by Christina Zampas:
We continue to follow the story of I.V. v. Bolivia, the Inter-American Court of Human Rights' first case of forced sterilization (see previous post here). Brought against Bolivia by an immigrant woman from Peru, the case alleges multiple violations of the American Convention on Human Rights by doctors who claim they obtained her consent to sterilization during a cesarean section. The doctors claimed the patient needed to be sterilized because a future pregnancy would be dangerous.
An expert on forced sterilization, Christina Zampas brought to bear the United Nations' and the European Court of Human Rights' standards on the subject, including numerous cases against Slovakia concerning the forced sterilization of Roman women. Her position is that sterilization for the prevention of future pregnancy cannot be justified on the ground of medical emergency:
Even if a future pregnancy might endanger a person’s life or health, alternative contraceptive methods can be used to ensure that the individual does not become pregnant immediately. The individual must be given the time and information needed to make an informed choice about sterilization. The provision of information, counseling and sterilization under the stressful conditions of childbirth are not only a violation of the right to information but also violate the right to privacy, physical integrity and human dignity and are a gross disregard for an individual’s autonomy, rising to the level of inhuman and degrading treatment.
Zampas also urged the court to recognize the multiple layers of discrimination underlying sterilizations in circumstances like those faced by I.V. and justified by "medical necessity." The decision to sterilize, usually made by men, is often informed by stereotypes that cast women as incapable of rational reproductive decision making.
Wednesday, July 6, 2016
AfricLaw (June 3, 2016): Uganda: Why the Constitutional Court Should Rule on the Right to Health, by Michael Addaney:
Responding to the shocking statistic that thirteen women giving birth in Uganda die each day due to circumstances that could be prevented (e.g., severe bleeding, infection, hypertensive disorders and obstructed labor), Michael Addaney notes that universal human rights could play a role in addressing the crisis. The current obstacle, he notes, is the political question doctrine, which forbids courts from deciding certain cases because the question lies in the province of elected officials.
In 2011, a non-governmental organization sued Uganda for violating the constitutional rights to health and life by not providing basic minimum maternal health care. The court ruled that the petitioners had presented a political question. Addaney notes, however, that the International Court of Justice has questioned judicial dodging of "political" questions "whenever the rights, interests or status of any person are infringed or threatened by executive action." The Supreme Court of Uganda appears to agree. In 2015, it reversed the ruling of the lower court, holding that "the petition has critical questions that need constitutional interpretation."
Addaney is hopeful that with the evolution of human rights and modern constitutionalism the political question doctrine will see its end.
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.
Saturday, June 18, 2016
Rewire, June 9, 2016, Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling, by Bridgette Dunlap
In a well-thought-out and organized article, Bridgette Dunlap looks at the impact the Supreme Court’s “non-decision” in Zubik v. Burwell will actually have on women’s access to contraceptives. Quelling what she assumes to be a reader's ever present worry, Dunlap discusses the current legal mandates in place for employers of all kinds and emphasizes that “the vast majority of people with insurance are currently entitled to contraption without a co-payment – that includes people for the most part, who work for religiously affiliated organizations.” Dunlap emphasizes the importance that coverage of the Supreme Court's ruling in Zubik not not overstate the impact of the non-decision:
The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.
Friday, May 13, 2016
New York Times (May 11, 2016): Judge Finds Planned Parenthood Shooting Suspect Unfit for Trial, by Jack Healey:
Robert Dear, the profoundly disturbed gunman who murdered 3 persons and maimed 9 at the Planned Parenthood in Colorado Springs last November, is unfit to stand trial. Dear suffers from delusions that the government has been following and spying on him for years. The trial is now at a standstill, as Dear is consigned to a mental institution in an attempt to restore him to competency. The presiding judge will review the case on August 11th. Dear has been uncooperative with his counsel and appears to want to the trial to proceed.
Friday, January 15, 2016
New York Times (Jan. 15, 2016): Planned Parenthood Sues Abortion Foes, by Erik Eckholm:
Planned Parenthood mounted a legal counterattack Thursday against the anti-abortion activists who used covertly taped videos to accuse the organization of trading in aborted baby parts, charging in a federal lawsuit that “anti-abortion extremists” had engaged in a three-year “complex criminal enterprise.”
Defendants in the lawsuit include the Center for Medical Progress, which created and disseminated the videos and is registered as a charitable trust in California, and the head of Operation Rescue, Troy Newman, described as a "dangerous and reckless extremist" in the complaint. These activists hoped to convince the American public that Planned Parenthood was illegally trading in aborted baby parts, an allegation that was not substantiated in subsequent congressional and state investigations. The videos have nonetheless fueled the campaign to de-fund Planned Parenthood and have triggered vandalism, harassments and threats of violence at its clinics.
The complaint charges fraud and violations of conspiracy laws, state privacy laws and specific statutes and seeks money damages. The complaint may be found here.
Tuesday, January 12, 2016
SoctusBlog (Dec. 17, 2015): Symposium: Integrity, Mission, and the Little Sisters of the Poor, by Richard W. Garnett:
The current iteration of the religious-freedom challenge to the Affordable Care Act’s preventive-services mandate (not, as is sometimes suggested, to the act itself) is called Zubik v. Burwell. This is unfortunate. True, the caption choice improves the “optics” for the Obama administration and reduces the likelihood of awkward headlines and embarrassing talking points. However, calling the case – as I will – Little Sisters of the Poor better captures its bizarre core and character. Calling it by this name reminds us that the administration has not reluctantly stumbled into but has instead doggedly pursued a conflict with a religious community of Roman Catholic nuns over whether and how its employees will receive government-mandated, cost-free insurance coverage for prescription contraceptives. Regardless of how the Court rules, that this pursuit appears to have been for the administration a matter not merely of policy but also of principle is extraordinary.
Sunday, September 27, 2015
RH Reality Check (9/22): Lawsuit Asks Oklahoma Supreme Court to Block Anti-Choice Omnibus Bill, by Jessica Mason Pieklo:
Continuing its pro-choice advocacy in Oklahoma, the Center for Reproductive Rights has petitioned the Oklahoma Supreme Court to block a TRAP law that is scheduled to come into force on November 1st. Pieklo writes:
SB 642 includes language that advocates claim could be interpreted to bring felony charges for any violation of the more than 140 statutes targeted at physicians and medical facilities providing abortion.
The lawsuit was filed on behalf of one of only two abortion providers in the state.
Saturday, March 21, 2015
The Journal Sentinel: Judge rules Wisconsin abortion law unconstitutional, by Daniel Bice & Cary Spivak:
A federal judge on Friday struck down a Wisconsin law requiring doctors performing abortions to get hospital-admitting privileges, concluding that the measure was enacted primarily to provide an obstacle for women seeking abortions.
U.S. District Judge William Conley, who earlier had put the law on hold, ruled that the 2013 law is unconstitutional. He issued a permanent injunction blocking its enforcement. . . .
The opinion is available here.
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):
Tuesday, February 24, 2015
Vermont Free Press: Lawsuit targets Vermont over abortion, by Elizabeth Murray:
Alan Lyle Howe says his opposition to abortion is more than just a moral belief — it's a religious conviction.
But Vermont's state-offered health plans force Howe to choose between his pro-life beliefs and insurance coverage, because all plans offered through Vermont Health Connect include a fee for elective abortion coverage, said his lawyer, Casey Mattox. . . .
Thursday, February 12, 2015
Third Circuit Court of Appeals Rejects Challenge by Several Religious Groups to Federal Contraception Rule
Lancaster Online/AP: Court nixes faith-based birth control mandate challenge:
An appeals court has ruled that the birth control coverage required by federal health care reforms does not violate the rights of several religious groups because they can seek reasonable accommodations.
Two western Pennsylvania Catholic dioceses and a private Christian college had challenged the birth control coverage mandates and won lower-court decisions. However, the U.S. 3rd Circuit Court ruling Wednesday said the reforms place "no substantial burden" on the religious groups and therefore don't violate their First Amendment rights. . . .
The opinion is available here.
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.