May 10, 2013
Caroline Corbin on Compelled Disclosures
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that recent appeals court decisions have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
April 24, 2013
Kansas Governor Scrawls "JESUS + Mary" On Sweeping Anti-Choice Bill As He Signs It Into Law
Feministing: Kansas Gov signs massive anti-choice law, writes "JESUS + Mary" in notes, by Maya Dusenbery:
Last Friday, Kansas Gov. Sam Brownback signed a sweeping anti-choice [bill] into law. Among other things, the bill requires doctors to lie and tell patients that abortion is linked to breast cancer, and defines life as beginning at conception in the state constitution.
Before the signing ceremony, Gov. Brownback added a few hand-written notes to his remarks. According to a photo snapped by the AP, the words “JESUS + Mary” are scrawled front and center across the top. . . .
The text of the law is available here.
March 08, 2013
South Dakota Governor Signs Extended Abortion Waiting Period into Law
Reuters: South Dakota governor signs extended abortion wait period law, by David Bailey:
South Dakota Republican Governor Dennis Daugaard on Friday signed into law a measure that excludes weekends and holidays from the state's 72-hour waiting period for abortions, potentially making the wait the longest in the nation. . . .
March 05, 2013
The Guardian Offers Timeline of "2012 War on Women"
The Guardian: The War on Women, by Heather Long:
2012 was a tough year for American females as various aspects of female health and reproduction repeatedly took center stage. Politicians and pundits, mainly Republican, made degrading and factually incorrect remarks about rape and contraception. But Democrats also left their mark with an ill-timed snipe at stay-at-home mom Ann Romney, reinvigorating the "mommy wars".
Here are the key moments in the 2012 War on Women . . . .
March 5, 2013 in 2012 Presidential Campaign, Abortion, Abortion Bans, Anti-Choice Movement, Congress, Contraception, Fetal Rights, In the Media, Mandatory Delay/Biased Information Laws, Parenthood, Politics, Pregnancy & Childbirth, Religion and Reproductive Rights, Reproductive Health & Safety, Sexual Assault, Sexuality, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack
February 25, 2013
More of the Same - GOP Continues to Push Aggressive Abortion Bills
MSNBC: GOP ignores 2012 lessons, pushes harsh anti-abortion bills, by Aliyah Frumin:
Republican lawmakers are pushing abortion-restricting bills in both Indiana and Arkansas, suggesting the GOP did not learn from the national backlash to super aggressive abortion rhetoric in the 2012 elections. (See: Akin, Todd and Mourdock, Richard.)
Old habits, it seem, die hard. . . .
February 25, 2013 in Abortion, Abortion Bans, Mandatory Delay/Biased Information Laws, Politics, State Legislatures, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack
February 08, 2013
Scott Gaylord and Thomas Molony on Casey and Ultrasound Mandates
Scott W. Gaylord & Thomas J. Molony (both of Elon Law) have published Casey and a Woman's Right to Know: Ultrasounds, Informed Consent, and the First Amendment in the Connecticut Law Review. Here is the abstract:
Twenty years after Planned Parenthood of Southeastern Pennsylvania v. Casey was decided, courts across the country are being called on to apply the Court’s undue burden test to novel abortion regulations. The most recent wave of regulation involves the use of ultrasound technology. Twenty-three states currently require physicians to perform, offer to perform, or follow specific protocols when performing an ultrasound prior to any abortion procedure. National attention, however, has focused on the growing number of states that require physicians to display and describe the ultrasound images to a woman seeking an abortion. Four states—Texas, North Carolina, Oklahoma, and Louisiana—have already passed such legislation, and several other states currently are considering similar bills.
The ultrasound statutes in Texas, North Carolina, and Oklahoma were immediately challenged in state and federal courts. Instead of focusing on the woman’s Fourteenth Amendment due process rights, the central issue in the federal cases has been whether physicians have a First Amendment right to be free from compelled disclosures relating to the ultrasounds. The federal courts have struggled with how to resolve these First Amendment claims within the abortion context. While the Fifth Circuit Court of Appeals upheld the Texas speech-and-display statute, a North Carolina federal District Court enjoined a similar North Carolina statute.
This Article explores the split between and among the courts that have addressed the First Amendment challenges to mandatory speech-and-display requirements. In particular, the Article evaluates how Casey’s undue burden test affects the First Amendment speech rights of physicians in the abortion context. Drawing on Casey’s references to Wooley v. Maynard and Whalen v. Roe, the Article concludes that the government has broad authority to mandate disclosures designed to inform a woman’s decision about an abortion. Under Casey, mandatory speech-and-display requirements that do not impose a substantial obstacle to a woman’s exercise of her right to abortion are constitutional if they are reasonable, which Casey defines as being truthful, non-misleading, and relevant. As a result, the Article contends that courts should uphold the Texas, North Carolina, Oklahoma, and Louisiana ultrasound statutes—as well as the similar statutes being considered by state legislatures across the country—against First Amendment challenges of physicians.
January 31, 2013
Oregon Stands Alone Among States in Lacking Abortion Restrictions
The Washington Post - Wonkblog: All states except Oregon now limit abortion access, by Sarah Kliff:
Roe v. Wade guaranteed abortion as a legal right across the country. A separate decision two decades later, Planned Parenthood v. Casey, guaranteed states’ rights to limit access to abortion, so long as it did not pose an “undue burden” on the woman.
States have, over the past four decades, made no short use of that latter right. Only one state, Oregon, has not layered additional restrictions on top of the Roe decision. . . .
January 06, 2013
Guttmacher Institute Releases 2012 State Policy Review on Reproductive Health and Rights
Guttmacher Institute: Laws Affecting Reproductive Health and Rights: 2012 State Policy Review:
Reproductive health and rights was once again the subject of extensive debate in state capitols in 2012. Over the course of the year, 42 states and the District of Columbia enacted 122 provisions related to reproductive health and rights. One-third of these new provisions, 43 in 19 states, sought to restrict access to abortion services. Although this is a sharp decrease from the record-breaking 92 abortion restrictions enacted in 2011, it is the second highest annual number of new abortion restrictions. . . .
January 6, 2013 in Abortion, Contraception, Fetal Rights, Mandatory Delay/Biased Information Laws, Pregnancy & Childbirth, Scholarship and Research, Sexuality Education, Sexually Transmitted Disease, State Legislatures, Targeted Regulation of Abortion Providers (TRAP), Teenagers and Children | Permalink | Comments (0) | TrackBack
December 04, 2012
Oklahoma Supreme Court Strikes Down Abortion Restrictions
The Huffington Post: Oklahoma Supreme Court Rejects Two Anti-Abortion Laws, by Laura Bassett:
The Oklahoma Supreme Court ruled on Tuesday that two anti-abortion laws recently passed by the state Legislature are unconstitutional and cannot be enforced. One of the laws would require women to have an ultrasound procedure before an abortion and hear a detailed description of the fetus, and the other would restrict the use of medication to end a pregnancy. . . .
November 29, 2012
State Laws Are Calling for Anti-Abortion Material to be Showcased on State Websites
Lincoln Journal Star: Anti-abortion group wants ultrasound images on state website, by Kevin O’Hanlon:
An anti-abortion group wants Nebraska lawmakers to pass legislation that requires four-dimensional ultrasound images of human fetuses to be posted on a state website.
So-called 4-D ultrasounds take images of the fetus from several angles, showing such things as facial features and capturing movement.
Nebraska Right to Life said Tuesday it has been in contact with Kansans for Life about legislation passed in Kansas that resulted in such images being shown on that state's Department of Health and Environment website as part of its "informed consent on abortion" statute. . . .
Arizona Daily Sun: Website details abortion risks, by Howard Fischer:
PHOENIX -- State health officials are implementing parts of a controversial abortion law even as one section is being challenged in court.
The Department of Health Services this past week erected a website designed to give those considering an abortion a list of things that can go wrong. The site, mandated by lawmakers and the governor earlier this year, also has an ever-developing list of services available to women who decide to keep their babies, from adoption services to diaper banks. . . .
October 02, 2012
National Women’s Law Center Launches Campaign, ‘This Is Personal,’ To Educate About Threats To Reproductive Rights
Campaign uses social media, satire and celebrities to educate and engage young women on threats to their reproductive health decisions
Washington D.C. – Citing a dramatic increase in legislative attacks on a woman’s ability to make reproductive health decisions, the National Women’s Law Center (NWLC) today launched This Is Personal,™ an exciting new effort to educate young women about the growing threat to their reproductive health and to encourage women to act to protect it. Supported by a broad range of national organizations, This Is Personal is a nationwide campaign that will leverage the latest trends in social media, paid advertising, and celebrity-driven videos to empower women to take action. . . .
Huffington Post: It's Open Season on Women's Reproductive Health Care, by Marcia D. Greenberger:
Women should be able to make personal medical decisions without interference from politicians or their bosses. It seems obvious, doesn't it? But more and more, you can't open a newspaper or turn on a television without seeing some lawmaker espousing his plan to limit women's access to reproductive health care. It's apparently open season on women's reproductive needs: everything from birth control and abortion to well-woman visits to maternity care, cancer and STI screenings is up for grabs. . . .
October 2, 2012 in Abortion, Abortion Bans, Anti-Choice Movement, Contraception, Mandatory Delay/Biased Information Laws, Reproductive Health & Safety, Sexuality Education, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack
August 02, 2012
Analyses of Eighth Circuit Decision Upholding S.D. Abortion Law
Here are two excellent analyses of the Eighth Circuit's recent, disturbing en banc opinion upholding the suicide-risk notification provision of South Dakota's so-called "informed consent" abortion law:
Balkinization: Anything Goes: Compelled Physician Speech in the Eighth Circuit, by Jennifer Keighley:
Last week’s en banc decision from the Eighth Circuit on South Dakota’s requirement that physicians inform women seeking abortions that they will be at an “increased risk of suicide ideation and suicide,” in the face of medical evidence demonstrating that there is no causal relationship between abortion and suicide, suggests that the Eighth Circuit believes there is virtually no limit on the state’s power to coerce physician speech in connection with an abortion procedure. . . .
RH RealityCheck: Perverting Informed Consent: The South Dakota Court Decision, by Maya Manian:
Informed consent is one of the cornerstones of health-care law and its basic principles have been well-established for decades. Informed consent law reflects the fundamental notion that every competent adult has a right to make the ultimate decisions about her healthcare that will affect her life prospects. A single driving goal animates informed consent law—respect for patient autonomy. Informed consent law preserves patient autonomy by protecting the patient’s bodily integrity and self-determination. . . .
August 01, 2012
The New York Times on Recent Court Decisions Curtailing Women's Rights
The New York Times (editorial): Three Rulings Against Women’s Rights:
At a time when abortion rights and women’s access to affordable contraception are threatened by political attacks, judges in three newly decided federal cases failed to preserve constitutional protections for women.
On Monday, Judge James Teilborg of the United States District Court in Phoenix upheld an Arizona law signed by Gov. Jan Brewer in April that bans all abortion procedures at 20 weeks from a woman’s last menstrual period, which is about 18 weeks after fertilization. . . .
June 24, 2012
Tracy Thomas on Regulating First-Trimster Abortions
Tracy A. Thomas (University of Akron School of Law) has posted Back to the Future of Regulating Abortion in the First Term on SSRN. Here is the abstract:
In 2011, more abortion bills were passed to restrict abortion than ever before. The proliferation and rate of proposals outpaces anything seen in the last quarter of a century since abortion was legalized in 1973. In what has been called “a year for the record books,” legislatures in all fifty states introduced a total of 1,100 bills resulting in 135 new laws restricting abortion. These laws include fetal pain bans on abortion after 20 weeks, mandatory ultrasound laws, 72-hour waiting periods, and heartbeat bills that ban abortion after 8 weeks. These laws represent an unprecedented seismic shift in the law from moderate regulation to overt hostility. The advent of significantly more stringent limits on abortion seems to blatantly defy the holding of Roe v. Wade permitting abortion in the first trimester. This abortion activism is part of a larger movement against women’s reproductive health that’s been called the “war on women.” These new laws are part of a war over women’s health being fought around the country — and in much of the country women are losing. State by state, legislatures are creating new obstacles to abortions and are treating women in ways that are patronizing and humiliating.
Despite the recent acceleration of abortion regulation, challenges to the Supreme Court’s 1973 landmark decision in Roe v. Wade by early term regulations are nothing new. Even before the dust settled in Roe, states had legislated to whittle away at the right to abortion by implementing obstacles to abortion under the guise of protecting women’s health and ensuring informed consent. This Article goes back to two of these early cases of informed consent abortion regulations in order to provide important context for the current deluge of first-term abortion regulations. It offers a legal history of City of Akron v. Akron Center for Reproductive Health, and Ohio v. Akron Center for Reproductive Health (Akron II). These two cases, both out of Akron, Ohio, maneuvered the legal boundaries of first-term regulations, with very different results; the first striking down such regulation, while the second upheld limitations on early abortions.
The renewed movement to restrict abortion in the first term resurrects these earlier decisions about abortion informed consent and puts them front and center as the courts will have to shift from considering legislation of late term “partial birth” abortion to early term regulations. This legal history offers insights and analyses gleaned from a review of the historical record found in archives and long-forgotten files in dusty basements. It relies on interviews with key players in the case to fill in the story between the black and white lines of judicial opinions. For the public dispute over abortion in Akron seized the locality while it captured the attention of the national media.
June 14, 2012
Sherry Colb on Texas Pre-Abortion Ultrasound Mandate: Part II
In Part One of this two-part series of columns, I began my analysis of amendments to a Texas law, the so-called “Texas Woman’s Right to Know Act,” that require abortion providers to do the following at least 24 hours prior to an abortion procedure: (1) perform an ultrasound on the patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. I have been referring to these amendments as “the Sonogram Law.” In this column, the second in this two-part series, I will continue my analysis of that law and of how it compares to abortion regulations that the Supreme Court has previously considered. . . .
Dorf on Law: "Inherently Truthful and Non-Misleading": Ultrasound Images Before An Abortion, by Sherry F. Colb:
In my Verdict column for this week, part 2 of a two-part series, I continue an analysis that I began last week of amendments to the Texas law that require abortion providers to perform an ultrasound on their patients twenty-four hours prior to an abortion, during which the provider must show the patient the embryo or fetus, play any fetal heart sounds audibly, and give a description to the patient of what is on the screen and what she is hearing. In my column, I consider the burden of such "informed consent" procedures on a woman who will undergo an abortion. In my blog post last week on the subject, I examine the potentially devastating impact of the procedure on the woman who decides against an abortion because of what she has seen and/or heard. . . .
June 03, 2012
Sherry Colb on Texas Pre-Abortion Ultrasound Mandate
Justia.com: Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part One in a Two-Part Series of Columns, by Sherry F. Colb:
A little over a year ago, Texas Governor Rick Perry signed into law a set of abortion regulations requiring pre-procedure ultrasounds. To simplify a bit, the law—which took the form of amendments to the so-called “Texas Woman’s Right to Know Act”—requires abortion providers to do the following at least 24 hours prior to the procedure: (1) perform an ultrasound on the patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen.
In response to the passage of this law (“the Sonogram Law”), a group of abortion providers brought suit, in Texas Medical Providers Performing Abortion Services v. Lakey. . . .
Dorf on Law: Mandatory Ultrasounds and the Adoption Alternative, by Sherry F. Colb:
In my Verdict column for this week -- Part 1 of a 2-part series -- I discuss the set of Texas amendments to the state's Woman's Right to Know Act, a group of amendments that I call "the Sonogram Law." The Sonogram Law, passed approximately one year ago, requires abortion providers to give women an ultrasound at least 24 hours prior to her abortion (or 2 hours prior, if she certifies that she lives at least 100 miles from a provider) and display the ultrasound image for the woman, explaining in detail the contents of the image, playing any audible fetal heart sounds, and explaining those sounds to the woman as well. A group of Texas providers challenged the constitutionality of the Sonogram law as it affects physicians, but my column focuses on the constitutionality of the law as it affects women seeking an abortion. I examine how the Sonogram law resembles and differs from abortion regulations that the Supreme Court has considered in the past. . . .
May 24, 2012
Informational Mandates for Abortion Based on Shaky Science
Slate Magazine: Do Abortions Cause Breast Cancer?, by Elanie Schattner:
In Kansas, legislators recently passed the No Taxpayer Funding for Abortion Act. If enacted into law, the bill would require doctors to tell pregnant women of a relationship between abortion and breast cancer. This news follows passage by the New Hampshire State House of the Women’s Right To Know Act Regarding Abortion Information. These related laws are unlikely to gain approval by the state senates. But there’s a trend: A similar measure took effect in Texas in February. Now, providers there must inform pregnant women about “the possibility of increased risk of breast cancer following an induced abortion,” the so-called ABC link. . . .
April 16, 2012
Guttmacher Institute Tallies State Policy Trends in First Quarter of 2012
Guttmacher Institute: State Policy Trends: Abortion and Contraception in the Crosshairs:
In the first three months of 2012, legislators in 45 of the 46 legislatures that have convened this year introduced 944 provisions related to reproductive health and rights. Half of these provisions would restrict abortion access. So far, 75 abortion restrictions have been approved by at least one legislative chamber, and nine have been enacted. This is below the record-breaking pace of 2011, when 127 abortion restrictions had been approved by at least one body in the first quarter of the year, but still higher than usual for an election year. In 2010, for example, only 46 such restrictions had passed at least one house during the first quarter, while in 2008, only 34 had passed one chamber by that point. . . .
April 16, 2012 in Abortion, Abortion Bans, Contraception, Mandatory Delay/Biased Information Laws, State Legislatures, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack
April 03, 2012
Georgia Legislature Passes "Fetal Pain" Abortion Ban
The Atlanta Journal-Constitution: Georgia lawmakers pass abortion bill on last, emotional day, by Kristina Torres & Christopher Quinn:
Two of the most contentious issues of this year's General Assembly passed on the last day of this year's session, salvaged by Republican leaders who wanted to tout them as major victories this election year.
New restrictions on late-term abortions in Georgia, which had appeared dead in the morning, and a bill that would cut unemployment benefits for Georgians, passed with just minutes remaining in the 2012 session.
The work to get them passed highlighted a more-than-14-hour day, one full of compromises that dominated much of lawmakers' work.
The day's most intense dealmaking was on abortion, the passage of which sparked protests in both the House and Senate. Commonly referred to as a "fetal pain" bill, House Bill 954 was all but gutted Monday after a bipartisan coalition in the state Senate forced key changes. . . .
April 02, 2012
Utah Enacts 72 Hour Waiting Period for Abortion
The Salt Lake Tribune: Guv signs bill requiring 72-hour wait for abortions, by Robert Gehrke:
"The governor is an adamant supporter of rights for the unborn and felt the bill appropriately allows a woman facing such a decision time to fully weigh her options, as well as the implications of the decision," said Ally Isom, the governor’s spokeswoman. . . .