Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Monday, December 8, 2014

Religious Non-Profits Challenge Exemption to Affordable Care Act's Contraception Rule

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. . . .

December 8, 2014 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Sunday, December 7, 2014

ACLU Files Suit on Behalf of Woman Fired for Requesting Breaks to Pump Breast Milk

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:
http://static.aclu-co.org/wp-content/uploads/2014/12/Provino-Complaint-and-Jury-Demand.pdf

More information on this case is available at:
https://www.aclu.org/womens-rights/provino-v-muster-inc

December 7, 2014 in In the Courts, Pregnancy & Childbirth | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Fifth Circuit Denies En Banc Review of Decision Blocking Mississippi's Admitting Privileges Law

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.

-CEB

November 20, 2014 in In the Courts, State and Local News, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

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.

Right?

It may sound absurd, but that is precisely who lawmakers cited in 2005, when they gathered testimony for a report by the South Dakota Task Force to Study Abortion. . . .

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. . . .

November 20, 2014 in Abortion, In the Courts, State Legislatures | Permalink | Comments (0) | TrackBack (0)

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. . . .

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

Friday, October 24, 2014

State Judge Allows Oklahoma's Admitting Privileges Law to Take Effect

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. . . .

October 24, 2014 in In the Courts, State and Local News, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

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. . . .

The Los Angeles Times: Most abortion clinics in Texas will be forced to close under court ruling, by Maria L. La Ganga:

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.

October 3, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Fifth Circuit Hears Arguments on Texas TRAP Law

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.  . . .

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

Monday, September 8, 2014

Federal Courts Grapple with "Undue Burden" Standard

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. . . .

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

Eighth Circuit Hears Arguments in Missouri State Legislator's Challenge to Contraception Rule

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. . . .

September 8, 2014 in Contraception, In the Courts, Religion and Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Rio Grande Valley Abortion Clinic Reopens After Last Week's Ruling on Texas Law

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. . . .

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

Monday, September 1, 2014

For Now, Federal Courts Are Protecting Abortion Access, But Will It Last?

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. . . .

September 1, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Federal Judge Blocks Enforcement of Louisiana Admitting Privileges Law

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. . . .

September 1, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

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)