Reproductive Rights Prof Blog

South Dakota Appeals U.S. District Court Decision on its Informed Consent Law

Sioux Falls Argus Leader: South Dakota appealing judge's ruling in abortion case:

Attorney General Marty Jackley is appealing a judge’s ruling which struck down portions of South Dakota’s law on informed consent for abortion.

U.S. District Judge Karen Schreier last month said doctors should not have to tell pregnant women that abortion increases the risk of suicide and suicidal thoughts or that they enjoy a legally protected relationship with their unborn children. She found suicide is not a known risk.

Jackley wants those issues heard on appeal and by the full court of appeals rather than a three-judge panel, according to a news release.

Schreier’s ruling upheld a provision of the law which said abortions “terminate the life of a whole, separate, unique, living, human being.”

Backers of Oklahoma Ultrasound Law Vow to Appeal

NY Times: Abortion Law Backers Vow Oklahoma Appeal, by James C. McKinley, Jr.:

HOUSTON — A day after a judge struck down an Oklahoma law requiring women seeking an abortion to see an ultrasound of the fetus and listen to a description of its attributes, the state said it would appeal the ruling, and Republican lawmakers vowed to pass the law again in a different form.

While advocates of abortion rights celebrated the victory in court, they acknowledged the fight against one of the most sweeping anti-abortion laws in the country was likely to continue for months in the Legislature and before the State Supreme Court. . . .

Republican legislative leaders said that if the state did not win on appeal, they would break the law into five bills and pass them in the session that begins in February.

Oklahoma Law Requiring Ultrasounds for Abortions Is Struck Down

Wash. Post: Law Requiring Ultrasounds for Abortions Is Struck Down, by Kari Lydersen:

Oklahoma Judge Says Measure Violates State Constitution

An Oklahoma judge decided Tuesday that doctors do not need to perform ultrasounds and offer women detailed information about the tests before performing abortions, striking down the strictest such law in the country.

Oklahoma County District Judge Vicki L. Robertson ruled that the 2008 law, which included other abortion-related provisions, violated a state constitutional provision that requires laws to address only one subject.

Thirteen states regulate the provision of ultrasounds by abortion providers, according to the Guttmacher Institute, a reproductive-health think tank. The provisions have been pushed by abortion opponents as a means of deterring women from having the procedures.

The Oklahoma law, which was never enforced, was the first to mandate that any woman seeking an abortion must have an ultrasound and that doctors describe the image in detail, including organs and extremities, even if the woman objects.

A Tulsa clinic run by Nova Health Systems, represented by the New York-based Center for Reproductive Rights, filed a lawsuit charging that the law not only violated the state Constitution's "single-subject" rule but also infringed on a woman's right to privacy, violated her dignity and endangered her health. . . .

Judge Rules on Challenge to ND Ultrasound Law

KFYR TV (Bismarck, ND): Judge Rules on ND Abortion Dispute:

A judge says North Dakota`s only abortion clinic does not have to provide audio of a fetal heartbeat for women who want to end their pregnancies.

Judge Douglas Herman ruled today in a challenge to a new state law. It requires the Red River Women`s Clinic to offer patients ultrasound images of their fetuses at least 24 hours before they have an abortion.

The law also says women must have a chance to listen to the fetal heartbeat.

Opponents of the provision said it was confusing. Herman`s ruling says the clinic has to tell patients the audio may be available. But the judge says the clinic doesn`t have to provide the audio itself.

New Arizona Law Hinders Access to Abortion Services

Huffington Post op-ed: New Arizona Law Restricts Access to a Range of Reproductive Health Services, by Sharon Camp (Guttmacher Institute):

On July 13, Arizona Gov. Jan Brewer signed into law a measure that establishes--among other restrictions on access to sexual and reproductive health services--an in-person counseling requirement and a 24-hour waiting period before a woman can obtain an abortion. Proponents of the new law claim that it helps inform women's abortion decisions. In truth, however, this distortion of the informed consent process only hinders access to abortion services.

The real impact of policies requiring a 24-hour delay between in-person counseling and the abortion procedure--that is, two visits in two days--is to force women to take more time off from work, arrange additional child care or stay away from home overnight when the distance to the clinic is great. Several studies conducted in Mississippi consistently found that an in-person counseling requirement was associated with more abortions being obtained out-of-state and more being performed during the second trimester.

Other Guttmacher studies have shown that disadvantaged women who have trouble raising the funds for their abortion frequently take up to three weeks longer than better-off women to obtain an abortion . . . .

Arizona Senate Sends Abortion Restrictions To Governor's Desk

The Arizona Republic: Senate OKs abortion restrictions, by Casey Newton:

Most Laws Mandating "Counseling" and Waiting Periods Before Abortion Have Little Impact

The Guttmacher Institute has published a report, Most Laws Mandating Counseling and Waiting Periods Before Abortion Have Little Impact, by Rebecca Wind. Here is the news release: 

Most Laws Mandating Counseling and Waiting Periods Before Abortion Have Little Impact

However, Laws Requiring In-Person Counseling Cause Delays, Create Additional Burdens; Poor Women Most Likely to be Affected

Laws that require counseling and waiting periods before abortion, but that allow counseling to be delivered over the Internet, by phone or by mail, appear to have little impact on birth and abortion rates. Yet, according to a new Guttmacher Paperanalyzing the relevant literature, these laws may postpone the timing of some abortions. These findings imply that counseling requirements do not cause women to change their minds about having an abortion, and that waiting period requirements do not impose significant barriers to abortion services.

Currently, 24 states require women to wait, usually for 24 hours, between an initial counseling session and the abortion procedure. The laws in seven of these statesrequire in-person counseling at least 18–24 hours prior to the procedure. Multiple studies of such a law in Mississippi have found that the requirement was associated with a decline in the state’s abortion rates, an increase in the number of residents going out of state for an abortion, and delays in accessing abortion services. These findings suggest that an in-person counseling requirement places an additional burden on some women by forcing them to take more time off from work, arrange child care or stay away from home overnight when the distance to the clinic is great.

“When we looked at the laws across the board, we found little impact,” said the lead author of the new report, Theodore Joyce. “But the Mississippi studies consistently found that an in-person counseling requirement was associated with fewer abortions overall, but more abortions obtained out-of-state and more second-trimester procedures. In other words, some women had to travel greater distances, and as a result, they decided not to have the procedure or to have it later in pregnancy, when the procedure is less safe and more expensive.”

Research from other Guttmacher studies has shown that poor and low-income women—who have the highest unintended pregnancy and abortion rates—are also those most affected by abortion restrictions. Disadvantaged women who have trouble raising the funds for their abortion frequently take up to three weeks longer than better-off women to obtain an abortion and have the greatest difficulties taking time off from work, getting child care and affording the travel costs to obtain the procedure. A requirement of multiple in-person visits imposes even more barriers, which disproportionately affect the most vulnerable women.

According to previous Guttmacher research, abortion providers report that almost all women obtaining abortions are sure of their decision to terminate their pregnancy before they have even picked up the phone to make an appointment. While it is important to ensure that women have the information they need to make an informed decision, the evidence suggests that mandated counseling serves only to delay women’s access to a procedure they have already chosen, rather than to inform their decision making.

“Requiring women to make two trips to obtain an abortion is unnecessary,” says Guttmacher Paper coauthor Lawrence Finer.“These laws are intended primarily to block abortion access, and the most disadvantaged women, who already have trouble accessing services, are disproportionately affected.”

Maya Manian on Gonzales v. Carhart and The "Woman-Protective" Anti-Abortion Argument

Maya Manian (University of San Francisco School of Law) has posted The Irrational Woman: Informed Consent and Abortion Decision-Making on SSRN. Here is the abstract:

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because the State knows better than the woman herself that her “ultimate” role is as a mother. Carhart’s woman-protective reasoning has pernicious and far reaching implications for gender equity in healthcare. This Article critiques the woman-protective anti-abortion argument from the perspective of healthcare law. It compares women’s healthcare decision-making under abortion law to patient decision-making under more general law. This Article is the first to demonstrate that the woman-protective argument against abortion is an anomaly in the law’s treatment of patient healthcare decision-making. It argues that the denial of pregnant women’s decision-making capacity in abortion law unjustifiably diverges from the law’s respect for patient decision-making capacity in both the tort law doctrine of informed consent and in constitutional law cases governing medical decision-making. In contrast to both private and public law on patient decision-making, abortion law treats competent adult women as incompetent to make decisions about their own healthcare. That abortion law treats women as poorer decision-makers bolsters the claim that sex discrimination underlies abortion regulations.

Caroline Corbin on Compelled Listening and Mandatory Pre-Abortion Counseling

Caroline Corbin (University of Miami School of Law) has posted The First Amendment Right Against Compelled Listening on SSRN. Here is the abstract:

This Article argues for a new First Amendment right: the right against compelled listening. Free speech jurisprudence-which already recognizes the right to speak, the right to listen, and the right against compelled speech-is incomplete without the right against compelled listening. The same values that underlie the other free speech rights also lead to this right. Furthermore, this claim holds true regardless of whether one conceives of the primary purpose of the free speech clause as creating a marketplace of ideas, enhancing participatory democracy, or promoting individual autonomy. The Article starts by examining the protection afforded to unwilling listeners by the captive audience doctrine, which balances private speakers' right to communicate against listeners' rights to privacy, equality, and voting. It then argues that protection for captive listeners can be grounded in free speech values, and explores two possible approaches to delimiting the free speech right against compelled listening. The Article concludes by applying the new right to state-mandated abortion counseling and state-mandated diversity training.

UT Senate Passes Abortion Measure Requiring Information About Fetal Anethesia

Salt Lake Tribune: Senate passes bill mandating 'fetal pain' abortion warnings, by Sheena McFarland:

A bill that would require doctors to inform a woman about fetal anesthesia for abortions performed after 20 weeks passed the Senate Thursday.

HB222, sponsored by Rep. Carl Wimmer, R-Herriman, would not require the information to be given during an emergency. Also, the person giving the information could inform the woman of his or her opinion about administering anesthesia.

The bill moves back to the House for a vote on an amendment.

For an analysis of fetal pain legislation, see Harper Jean Tobin, CONFRONTING MISINFORMATION ON ABORTION: INFORMED CONSENT, DEFERENCE, AND FETAL PAIN LAWS, 17 Colum. J. Gender & L. 111 (2008).

Kansas House Passes Abortion Restrictions

Kansas City Star: Kansas House approves two abortion bills, by David Klepper:

Women seeking abortions would get the option of seeing a fetal sonogram under legislation passed Wednesday by the Kansas House.

The House also passed a second bill that would require providers to give state health officials the diagnoses used to justify late-term abortions.

South Carolina House Passes 2-Visit Requirement for Abortions

Via the Daily Women's Health Policy Report: South Carolina House Passes Bill Requiring Mandatory Waiting Period for Abortions

South Carolina's House on Tuesday voted 83-28 to approve a bill (H. 3245) requiring women to wait at least 24 hours after an ultrasound before receiving an abortion, the AP/Rock Hill Herald reports. The bill, called the "two-visit bill" by critics, increases the state's mandatory waiting period from one hour. Advocates for the measure said it will give women time to reflect on their decision, as well as put South Carolina in line with a majority of states that have similar laws. Some Democrats noted that other states do not connect the waiting period with an ultrasound. Rep. Steve Parker (R) said the bill "will save lives" and that "[i]f we save one life, I think it's worthwhile."

According to the AP/Herald, Republicans defeated efforts to include provisions in the bill exempting rape survivors and protecting the jobs of women who make the two-day trip. Critics of the bill who proposed the amendments said requiring two trips creates a burden for low-income women living in rural areas because they have to take two days off work and arrange travel to one of three clinics in the state that offer abortion services.

State Legislatures Consider Ultrasound Legislation

The Associated Press published an article yesterday listing twelve states currently considering bills to offer or mandate ultrasounds before abortion.  The article is available here.

Carol Sanger on Mandatory Ultrasounds

Carol Sanger (Columbia Law School) has posted Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice on SSRN. Here is the abstract:

Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus.The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or what one court has called sensory and contemporaneous observance, in fact appears throughout the law. This Article develops a visuality of law, focusing specially on the treatment of fetal imagery.

Drawing upon medical and ethnographic literature on sonography, this Article situates the regulatory appeal of mandatory ultrasound within a preexisting visual familiarity with the fetus. I argue that while a welcome and rewarding experience in the context of wanted pregnancies, ultrasound becomes pernicious when required by law in connection with abortion. The argument I develop is that not only is an abortion decision itself protected, but so is the deliberative path a woman takes to reach that decision.

Mandatory ultrasound intrudes upon that protected area of decisionmaking in several respects. First, simply by virtue of having an ultrasound, a pregnant woman is promoted into the category of mother and it is against this conscripted status that she must proceed. Second, unlike other compulsory forms of abortion disclosure, the statutes require the woman to use her body to produce the very information intended to dissuade her from pursuing an abortion. The resulting fetal image is intended as a self-evident statement about the meaning of human life.

But characterizing the fetus as a child, as most ultrasound statutes do, is a political description, not a scientific one. It confuses medically informed consent with what I identify as morally informed consent, that realm of personal considerations that are a woman's alone to determine. Imbued with indelible social meaning, the mandatory ultrasound requirement replaces consent with coercion - not about the ultimate decision, but about how a woman chooses to get there.

S.C. Bill Would Expand on New Ultrasound Law

The State: Proposed S.C. bill sets stage for abortion fight, by Leroy Chapman, Jr.:

Abortion foes in the Legislature have sown the seeds of what could develop into another battle over regulating abortion in South Carolina.

Seven S.C. House lawmakers have prefiled a bill that would require women seeking abortions to be given a list of clinics and other facilities that provide free ultrasounds. That list could include pregnancy crisis centers — many run by antiabortion groups — that actively discourage abortion and encourage women to choose other alternatives.

The bill expands upon the law the General Assembly passed this year that requires abortion providers to give women seeking an abortion the option of viewing an ultrasound beforehand.

South Dakota's "Informed Consent Law" and the Doctor-Patient Relationship

New England Journal of Medicine: South Dakota's Abortion Script Threatening the Physician-Patient Relationship, by Zita Lazzarini:

Under a law that went into effect in July, physicians in South Dakota must tell any woman seeking an abortion that she is terminating the life of "a whole, separate, unique, living human being" with whom she has an "existing relationship," that her relationship "enjoys protection under the United States Constitution and under the laws of South Dakota," and that abortion terminates that relationship along with "her existing constitutional rights with regards to that relationship."  

The "informed-consent" law was passed in 2005 but was immediately suspended by an injunction sought by Planned Parenthood, which operates the only South Dakota clinic providing abortions. On June 27, 2008, in Planned Parenthood Minnesota v. Rounds, a divided Eighth Circuit Court of Appeals lifted the injunction, clearing the way for implementation....

The South Dakota requirements, referred to as "the script" by the media, signal a new step in states' efforts to restrict abortion. The law is unique in ways that should cause concern to physicians, patients, and protectors of the physician–patient relationship. As part of an ongoing challenge to abortion, it has import far beyond the borders of South Dakota.

See also: New England Journal of Medicine: Physicians and the First Amendment, by Curfman, et al.:

In the November elections, the citizens of three states resoundingly defeated initiatives aimed at curtailing reproductive rights. In Colorado, a proposed amendment to the state's Constitution would have given the same legal rights to fertilized eggs as to living persons. This amendment, which was rejected by a wide margin, would have had broad ramifications for abortion rights, the use of contraceptive agents, and stem-cell research. In California, a parental notification proposition backed by antiabortion forces was also rejected. In South Dakota, a ballot measure that would have effectively banned all abortions in the state was defeated, as was a similar measure 2 years ago.  Those who support the principle of reproductive freedom can take heart in the overwhelming failure of these initiatives. But unbeknownst to many, there remains on the books in South Dakota another law, known as the informed consent to abortion law, that is cause for concern.

 

Dahlia Lithwick on Selective Solicitude for Health Care Providers' Rights of Conscience in the Reproductive Health Context

Slate: Nursing Grudges, by Dahlia Lithwick:

What does it tell us about the state of the abortion wars today that battles once waged over the dignity and autonomy of pregnant women have morphed into disputes over the dignity and autonomy of their health care providers instead? Two of the most pitched battles over reproductive rights in America right now turn on whether health workers can be forced to provide medical services or information to which they ethically or professionally object. But as we learn from these fights, our solicitude for the beliefs of medical workers is selective: Abortion opponents will soon enjoy broader legal protections than ever. Those willing to provide abortions, on the other hand, seem to enjoy far fewer. And women seeking reproductive services? They will continue to be caught in the tangle between the two.

Californians to Vote on Parental Notification Ballot Measure on Nov. 4

From Planned Parenthood Affiliates of California:

Here's the truth behind Prop. 4:

1) It puts teenagers in real danger

A scared pregnant teen who can't go to her parents can feel trapped and desperate. Instead of seeking the counseling and safe medical care she needs, she may choose an unsafe back alley, illegal abortion, go across the border, or even contemplate suicide.

Click here for more information on the ill effects of this measure.

2) Alternate family member notification and judicial bypass are unreasonable

It's deceptive to call this "family notification." Right now a teen can go notify another adult, but Prop 4 would close off that option. Under Prop 4 before a teen could notify another family member, she must first accuse a parent of mistreatment and sign written statement saying she fears physical, sexual, or severe emotional abuse - no matter what her circumstances really are. This would trigger a family investigation by authorities. This so-called notification is nothing more than a form letter sent to another person who may not even live in the same state. There is no requirement for counseling and no requirement that the substitute adult help her when she is in crisis.

Alternatively, a teen could avoid parental notification by appearing before a judge. However, this is unrealistic. If a teen is pregnant, unable to go to her parents, and already desperate, she isn't going to navigate court bureaucracy to reveal the most intimate details of her life to an unfamiliar judge in an impersonal courthouse. She doesn't need a judge; she needs a caring counselor and safe, quality medical care without delay. Proposition 4 provides none of this. See how Prop. 4 would work on a practical level.

3) Prop. 4 is rejected by experts and research

The California Medical Association, the California Nurses Association, the California Teachers Association, the California School Counselors Association - all major organizations who work with teens every day OPPOSE Prop. 4 because it threatens teen safety. See full list.

In addition, research has shown that laws like Prop. 4 do not work. For instance, a Bixby Center brief highlights the dangerous actions teens are likely to take if parental notification in implemented in California.  Click here for other research on laws like Prop 4.

More on Oklahoma's Mandatory Ultrasound Law

Slate: Required Viewing: Oklahoma's gallingly paternalistic ultrasound law, by Emily Bazelon:

For many pregnant women, ultrasounds are like candy—there can't be too many of those grainy black-and-white images of the fetus napping or kicking in the womb. But if you're pregnant and don't want to be and are considering an abortion, an ultrasound image could be an object of dread. It might force you to think about the fetus as having a separate identity or as the baby it could become.

Dread is the emotion pro-life groups look to instill when they push states to pass laws that make an ultrasound part of the abortion procedure. It should also be said that women may, in fact, react otherwise: They could shrug off the ultrasound as a matter of indifference or even greet it with relief, because an image taken during the first trimester may look much more like a blinking light, or a newt, than a baby. I've never seen a study measuring how many women feel what, but abortion opponents believe that if women see the physical evidence of their pregnancy on the screen, at least some of them will decide not to end it.

Carole Joffe on Oklahoma's Mandatory Ultrasound Law

The Beacon Broadside: Averting Their Eyes from an Assault on Women's Health, by Carole Joffe:

"Nothing in this section shall be construed to prevent a pregnant woman from averting her eyes from the ultrasound images required to be provided to and reviewed with her." This is the "good news" of an egregious law recently passed in Oklahoma making ultrasounds mandatory for abortion patients. But though I read the law carefully I couldn't find anything allowing women to also cover their ears during the ultrasound. This is unfortunate, because the law requires that those performing the ultrasound "provide a simultaneous explanation of what the ultrasound is depicting," and also "provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable." Even those women who are aborting a pregnancy caused by rape or incest are compelled to undergo such mandated ultrasounds. 

Ultrasounds have become one of the key weapons of anti-abortion legislators. A number of states require abortion providers to make ultrasounds available; a handful of others make viewing mandatory, but Oklahoma is the first state, according to the Center for Reproductive Rights, that requires a woman to hear the description of an ultrasound image.