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. . . .
Monday, August 11, 2014
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.
Saturday, August 9, 2014
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. . . .
Wednesday, August 6, 2014
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. . . .
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. . . .
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)
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.