Wednesday, March 23, 2016
Slate (March 22, 2016): Zubik v. Burwell, the Latest Challenge to the ACA's Contraception Mandate Could Have Wide-Ranging Consequences, by Dahlia Lithwick:
On Wednesday, the Supreme Court will hear oral argument in Zubik v. Burwell. Dahlia Lithwick argues that in many ways Zubik is as important a case as Whole Women's Health v. Hellerstedt because the "challenge sets up a dramatic new effort to curb civil rights laws by way of religious veto. The result will not implicate merely birth control but also gay rights and racial discrimination."
In Zubik, religious non-profits challenge the accommodation offered to them so that they can avoid providing employees contraception that is otherwise required under the Affordable Care Act. The accommodation allows the employers to send a letter or fill out a form stating that they have a religious objection to providing coverage. Insurance companies then provide the contraceptive benefit themselves using separate funds. The accommodation has been challenged under the Religious Freedom Restoration Act which prohibits the government from imposing a "substantial burden" on the exercise of religious beliefs unless the burden is the "least restrictive means" to achieve a "compelling government interest."
In a Washington Post op-ed Laycock noted that, according to the logic of their lawsuit, no form of accommodation could satisfy the religious employers. “[T]heir real objection is to what their secular insurers are required to do,” Lacycock writes. “The religious objectors demand a right to control how the government regulates insurance companies.” In part, the religious objectors are arguing that the government is conceding that its purposes can’t be all that compelling by offering an accommodation in the first place, which Laycock reasonably contends will deter future accommodations and imperil real religious liberty.
Lithwick notes that the religious non-profits appear to be seeking a "general veto power over other people's rights" and that their arguments are inconsistent with the way that religious accommodation has been historically understood.
BBC (March 18, 2016): Chile Lawmakers lift abortion ban introduced by Pinochet:
Last week, Chile's lower house of Congress approved a bill that would decriminalize abortion in cases of rape, health risk to the mother, and instances where the fetus is not viable. The bill, which is supported by Chilean President Michelle Bachelet, needs to pass the Senate to become law. Chile is one of seven Latin American countries that ban abortions in all circumstances. The other countries are El Salvador, the Dominican Republic, Haiti, Honduras, Nicaragua and Surinam.
Tuesday, March 22, 2016
Dallas Morning News (March 15, 2016): The problem with the anti-abortion speciality license plate, by Noah Feldman:
Noah Feldman's column discusses a flaw in the Supreme Court's free speech jurisprudence. In a decision upholding Texas's ability to refuse to allow a license plate with a Confederate flag, the Supreme Court held that license plates are government speech. This decision led to a reversal of a Fourth Circuit case holding that if North Carolina offers drivers an anti-abortion license plate, it must also offer a pro-choice plate.
According to Feldman:
The problem with making license plates into government speech is twofold. First, the government isn’t speaking alone. In his dissent in the North Carolina case, Judge James Wynn wrote that any reasonably well-informed observer would know the individual is speaking, too.
The North Carolina case makes the viewpoint discrimination especially clear because the abortion issue has two easily recognized sides. If you want an abortion-rights plate to speak against the anti-abortion plate, you simply can’t get one. The message is by definition unavailable to you.
It isn’t just that the government disagrees with you. It’s actively giving the other side a forum while denying the same forum to you.
The second problem with the Supreme Court’s government speech doctrine as it’s now being applied is that it’s binary: Either the government can say anything it wants or else it’s heavily constrained by the risk that it might unconstitutionally limit free speech.
Feldman suggests that the court should carve out a "middle ground" for situations where the creates branding opportunities to private actors. "In such circumstances, the government should be banned from giving space to only one side in a dispute. But the government should be allowed to exclude certain content on the grounds that it might cause offense."
Monday, March 21, 2016
Rewire (March 21, 2016): Everything You Need to Know For The Supreme Court Birth Control Case, " by Jessica Mason Pieko:
On Wednesday, March 26, the Supreme Court will hear argument in Zubik v. Burwell. The case is the second challenge the Court has considered to the Affordable Care Act's birth control benefit.
This time, the plaintiffs are religiously affiliated businesses like universities, hospitals, and nursing homes: nonprofits that serve the general population, but have a corporate affiliation to a faith group. Those organizations argue that, like churches, synagogues, and other houses of worship, they should be fully exempt from the law’s requirement that employer-provided health insurance plans cover contraception as preventive care.
Pieko's article provides an overview of the case. More information about the case is available on SCOTUS blog.
New York Times (March 20, 2016): When Did Porn Become Sex Ed? by Peggy Ornstein:
According to Mother Jones in 2016, the federal government will spend $85 million on abstinence only programs despite research questioning its effectiveness. President Obama has proposed removing all funding for abstinence only education from the 2017 federal budget. Obama has proposed cuts to abstinence only education before. His first budget as president and and his 2010 budget sought to make cuts to abstinence funding, but the cuts did not make it through Congress. The proposed 2017 cuts are likely to have a similar fate.
In addition to concerns about the efficacy of abstinence only programs in reducing teen pregnancy, Peggy Ornstein discusses the impact of abstinence-only curriculums that teach students "little more than 'don't.'" Ornstein argues that we fail our teens by not having conversations about what happens after "yes."
The statistics on sexual assault may have forced a national dialogue on consent, but honest conversations between adults and teenagers about what happens after yes — discussions about ethics, respect, decision making, sensuality, reciprocity, relationship building, the ability to assert desires and set limits — remain rare. And while we are more often telling children that both parties must agree unequivocally to a sexual encounter, we still tend to avoid the biggest taboo of all: women’s capacity for and entitlement to sexual pleasure.
Sunday, March 20, 2016
RH Reality Check (March 14, 2016): Unintended Pregnancy Reaches a 30-Year Low, But Racial and Economic Disparities Persist, by Elizabeth Dawes Gay:
A new study from the Guttmacher Institute indicates that in 2011, the unintended pregnancy rate for women 15-44 fell to 45% of all pregnancies. The decline appears to correlate to expanded access to contraceptives following implementation of the Affordable Care Act. However, despite the gains, poor women and women of color continue to experience higher rates of unintended pregnancies. Elizabeth Dawes Gay discusses systemic inequities that lead to the disparities. Despite passage of the ACA, women of color are still more likely to be uninsured. The majority of the 17 states that have refused to expand Medicaid eligibility have a higher percentage of residents of color. Racial discrimination in health care settings persist and may lead women to avoid health systems. Finally, "women of color disproportionately struggle under the weight of poverty." This may make it difficult for them to afford birth control when faced with the needs of paying other bills. Gay cites findings from the Center for American Progress that "single Black women have a median wealth of only $100 and single Latina women have a median wealth of $120, compared to $41,500 for single white women."
Friday, March 18, 2016
Salon (Mar. 14, 2016): While America Is Distracted by the Trump Freakshow, Indiana Just Passed One of the Most Restrictive Abortion Bills in the Nation, by Bob Cesca:
A draconian anti-abortion bill has landed on Governor Mike Pence's desk, passed by a legislature determined to raise the stakes in the campaign conservatives are waging against a woman's right to choose. Described as a "reproductive Jim Crow law" by Salon reporter Bob Cesca, the bill contains a litany of targeted regulations of abortion providers (TRAPs) as well as" a ban on all abortions for elective reasons--and if the fetus suffers from any disability whatsoever." Women who are able to surmount the obstacles and have an abortion must pay for the burial or cremation of the fetus. In addition to the now-familiar ultrasound requirement, women will be required to listen to the fetal heartbeat. All of this is on top of the TRAP laws that have left all but four of Indiana’s 92 counties without an abortion facility.
Thursday, March 17, 2016
Professor Caroline Mala Corbin has posted to SSRN (here) the issue brief she wrote for the American Constitution Society on why the Religious Freedom Restoration Act does not provide a defense to the contraception mandate under the Affordable Care Act. The issue is presented in the case of Zubik v. Burwell.
Here is the abstract:
The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.
Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.
In West Virginia,
Overriding the governor’s veto for the fourth time this year, West Virginia lawmakers put a ban on a common second-trimester abortion method into law on Thursday. Lawmakers voted to override a veto by Gov. Earl Ray Tomblin, a Democrat, of a bill outlawing the dilation and evacuation procedure, considered the safest second-trimester abortion method. Many Democrats sided with the Republican majority in favor of the override, which required a simple majority vote from the House and the Senate. The abortion ban takes effect in late May. In vetoing the bill, Mr. Tomblin cited patient safety concerns from doctors and worries that it would be unconstitutional. Courts blocked similar bans that Kansas and Oklahoma enacted in 2015. Proponents of the bill refer to the procedure as dismemberment. The law bans the abortion method unless the doctor had already caused the fetus’s demise. Exceptions exist for medical emergencies.
In South Carolina,
Gov. Nikki R. Haley said Tuesday that she would almost certainly sign a bill banning abortion past 19 weeks. Ms. Haley, a Republican, said she “can’t imagine any scenario in which I wouldn’t sign it.” The bill could soon be on the governor’s desk. The House is expected to vote Wednesday on a compromise the Senate passed last week. The measure would allow exceptions only if the mother’s life was in jeopardy or a doctor determined that the fetus could not survive outside the womb. Similar laws are in effect in 12 states. They have been blocked by court challenges in three others.
Wednesday, March 16, 2016
SCOTUS Blog (Mar. 7, 2016): Court Restores Woman’s Right to Be a Mother, by Lyle Denniston:
In a victory for LGBTQ advocates, the Supreme Court issued a unanimous decision on Monday, restoring a mother’s legal parenting rights to the children she had adopted with her same-sex partner, the children’s birthmother. The case, V.L. v. E.L., originated in Alabama, where plaintiff E.L. appealed a visitation order granted to V.L. to the Alabama Court of Civil Appeals. The Alabama Supreme Court nullified the visitation order, refusing to recognize the adoption decree granted in Georgia.
The Court’s unsigned (“per curiam”) decision in the Alabama adoption case was based entirely on the provision in the Constitution’s Article IV declaring that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” and on the Court’s prior interpretations of that clause. If a state court has jurisdiction under its own laws to issue a decision, Monday’s opinion said, then that decision is entitled to respect in the courts of every other state.
Tuesday, March 15, 2016
New York Times (Mar. 5, 2016): The Return of the D.I.Y. Abortion, by Seth Stephens-Davidowitz:
The recent surge in state-level anti-abortion legislation, such as the Texas TRAP law at issue in Whole Woman’s Health v. Hellerstedt, has led to the closure of many abortion providers across the country. While the impact of such laws on access to safe abortions is clear, the response of pregnant women is less so due to the silencing stigma surrounding the procedure.
Google searches can help us understand what’s really going on. They show a hidden demand for self-induced abortion reminiscent of the era before Roe v. Wade.
This demand is concentrated in areas where it is most difficult to get an abortion, and it has closely tracked the recent state-level crackdowns on abortion.
While only 34% of people involved in an abortion – that is, people who have had an abortion or their partners – tell anyone about the procedure, Google searches offer a window into the decision behind an abortion.
Search rates for self-induced abortion were fairly steady from 2004 through 2007. They began to rise in late 2008, coinciding with the financial crisis and the recession that followed. They took a big leap in 2011, jumping 40 percent. The Guttmacher Institute singles out 2011 as the beginning of the country’s recent crackdown on abortion; 92 provisions that restrict access to abortion were enacted. There was not a comparable increase in searches for self-induced abortions in Canada, which has not cracked down.
These statistics do not reveal the true trends in self-induced abortions across the country, but they certainly indicate a disturbing increase in demand in states where abortion services have become all-but impossible to obtain.
Monday, March 14, 2016
Guttmacher Institute (Mar. 2, 2016): U.S. Unintended Pregnancy Rate Falls to 30-Year Low; Declines Seen in Almost all Groups, but Disparities Remain, by Rebecca Wind:
A new analysis from the Guttmacher Institute, just published in the New England Journal of Medicine, shows that the U.S. unintended pregnancy rate declined substantially between 2008 and 2011. According to “Declines in Unintended Pregnancy in the United States, 2008–2011,” by Lawrence B. Finer and Mia R. Zolna, there were 45 unintended pregnancies for every 1,000 women aged 15–44 in 2011, down from 54 per 1,000 in 2008. The 2011 rate was the lowest observed in three decades. Although unintended pregnancy rates have declined among nearly all demographic groups examined, disparities still remain, particularly for poor women and women of color.
The study, released last week, can be found here.
Sunday, March 13, 2016
New York Times (Mar. 10, 2016): First Uterus Transplant in United States Fails, by Denise Grady:
Performed by physicians at the Cleveland Clinic, the first uterus transplant in the United States has failed. The nature of the complications with the transplant have not been revealed, but pathologists are analyzing the uterus in the hopes of determining what went wrong.
The Clinic's uterine transplant program is an effort to enable women without a uterus to become pregnant and give birth.
Friday, March 11, 2016
New York Times (Mar. 10, 2016): Governor Vetoes Curb on an Abortion Method:
Gov. Earl Ray Tomblin on Wednesday vetoed a ban on a second-trimester abortion practice. The bill would ban dilation and evacuation method abortions unless the doctor has caused the death of the fetus. It would not ban the method in cases of medical emergency. There would not be criminal or civil penalties, but physicians could potentially lose their medical licenses. The governor, a Democrat, cited concerns about constitutionality and patient safety. Courts blocked similar bans on the commonly used practice that Kansas and Oklahoma enacted in 2015. The Republican-led Legislature passed the bill alongside some Democrats. West Virginia lawmakers can override the veto with a simple majority of both chambers. Last year, lawmakers overrode Mr. Tomblin’s veto of a ban on abortions 20 weeks after conception.
Wednesday, March 9, 2016
Daily Illini (Feb. 29, 2016): Illinois Representatives Drop Bill after National Outcry
Two Republican lawmakers in Illinois have withdrawn a proposed law that would have denied public assistance and birth certificates to the children of unwed mothers who do not name the fathers of their children. The penalty would not apply to children whose biological fathers were identified conclusively through DNA evidence or who had a family member agree to support the child. The bill included an exception for artificial insemination as long as the mother waived her right to public assistance for the child. The bill did not, however, include an exception for rape and incest.
The lawmakers withdrew the bill after a national outcry was triggered by editorials criticizing the bill and published on Salon, Chicagoist and Jezebel.
Tuesday, March 8, 2016
New York Times (Feb. 25, 2016): First Uterus Transplant in U.S. Bolsters Pregnancy Hopes of Many, by Denise Grady:
Doctors at the Cleveland Clinic have performed the first uterus transplant in the United States. The recipient is already a mother, having adopted three boys.
The surgery is complex and multi-phased. The recipient first undergoes egg extraction. The eggs are then fertilized with the sperm of her partner, and the resulting embryos are frozen. The recipient then begins a regime of immunosuppressants, in preparation for the transplant. She will be monitored for a year to determine whether the transplant was successful. Only then will embryos be introduced into the uterus. After one or two successful pregnancies, the uterus will be removed.
The Cleveland Clinic will attempt ten uterine transplants as part of a clinical trial to determine whether it will offer uterine transplant as a standard procedure.
Monday, March 7, 2016
New York Times (Feb. 29, 2016): Veterans Seek Help for Infertility Inflicted by Wounds of War, by Denise Grady:
Despite a new policy giving troops the opportunity to freeze their eggs or sperm before deployment, the military offers veterans no coverage for in vitro fertilization (IVF), leading to questions about how best to support soldiers who sustain injury to their reproductive systems in combat and are medically retired or discharged from the military. Adding insult to injury is the fact that the military does cover IVF for active-duty service members. A bill to rectify this inequity was headed toward a vote last summer, but its sponsor withdrew it when Republicans threatened to riddle it with exceptions that would prohibit the Veterans Administration from having anything to do with Planned Parenthood.
Friday, March 4, 2016
Whole Woman’s Health Argument Actually Focused on Women’s Health. by Cynthia Soohoo
Following Wednesday’s argument in Whole Woman’s Health v. Hellerstedt, commentators have focused on the impact of the women on the Court. One area where Justices Ginsburg, Sotomayor and Kagan made their presence felt was on the quality of the Court’s discussion of women’s health. Collectively, they (with significant help from Justice Breyer, and even some from Justice Kennedy) probably spent more time considering the health impacts of Texas HB2 than the entire Texas legislature did when it passed the law.
And, it was appropriate that they did. Since it would be unconstitutional for Texas to pass a law with the purpose of preventing women from having abortions, the Texas Solicitor General had to argue that HB2 was enacted to protect women’s health. Petitioners have maintained that by delaying or preventing women’s access to abortion, the law actually increases the health risks that women face.
The challenged law imposes two requirements: (1) that doctors who perform abortions have admitting privileges at hospitals within 30 miles and (2) that facilities that provide abortions meet the requirements of an ambulatory surgical center (ASC). Collectively, the requirements will result in closure of three-quarters of Texas’s abortion clinics (About half of Texas’s 40 clinics closed when the admitting privileges requirement went into effect. The ASC requirement has been stayed).
The Texas SG tried to make broad, conclusory statements that the additional requirements would make abortion provision safer, but the Justices pushed back asking the SG why the requirements were necessary given the nature of abortion procedures – medical abortion just requires women to take two pills and early surgical abortion does not even involve general anesthesia - and the procedures’ extremely low complication rates.
Justices Sotomayor questioned the necessity of having a woman “travel 200 miles or pay for a hotel” to take 2 pills for a medical abortion in an ambulatory surgical center. When the Texas SG later tried to argue that the ASC requirement was necessary in case complications arose, Justice Ginsburg shut him down, noting that if complications arose from a medical abortion, they would happen several hours later after the woman returned home.
The Justices also took note that the risks associated with abortion are extremely low, less than 1% (the risks of a colonoscopy are 28 times greater) and did not justify the ASC or admitting privileges requirement. Justice Sotomayor pointed out that surgical abortion is essentially the same medical procedure as the treatment women receive following a miscarriage, but Texas has not imposed additional requirements for treatment of miscarriages. After Justice Ginsburg noted that early stage abortion is “among the most safe” and “least risk procedures” and that child birth is much riskier, the Texas SG made the mistake of trying to disagree with her. Justice Ginsburg shot back, “Is there really any dispute that childbirth is a much riskier procedure than early stage abortion.”
Several Justices also showed real concern about the law’s negative impact on women’s health. Justice Kennedy noted that the law appeared to be increasing surgical abortions as opposed to medical abortions in Texas, which “may not be medically wise.” Justice Sotomayor expressed concern that the lack of access to legal clinical care would bring us back to the time before Roe v. Wade, where women were forced to get abortions from unlicensed providers. And, Justice Breyer questioned Texas’s health purpose given evidence that lack of accessibility will increase self-induced abortions and the risk of “many more women dying.”
The Justices also emphasized the need to consider how the law affects access to care for all Texas women. Justices Kagan and Ginsburg pushed back on the Texas SG’s statement that the law would leave abortion facilities in metropolitan areas. Justice Kagan pointed out that in 2012 less than 100,000 women lived more than 150 miles from an abortion provider, and as a result of the law 900,000 women would live further than 150 miles from a provider and 750,000 further than 200 miles. Justice Ginsburg emphasized that in determining women’s access to abortion under Planned Parenthood v. Casey, “the focus must be on the ones who are burdened and not the ones who aren’t burdened.” Thus, the Court’s inquiry should not focus on the women who live in Austin or Dallas but “the women who have the problem who don’t live near a clinic.”
Many of the questions posed by Justices Ginsburg, Sotomayor, Kagan and Breyer revealed skepticism about Texas’ asserted health justification for the requirements. In responding to questions about availability of services, the Texas SG stated that women in West Texas could obtain abortions in New Mexico. Justice Ginsburg questioned how Texas could rely on women traveling to facilities in New Mexico, which does not impose admitting privileges or ASC requirements.
The Texas SG was repeatedly questioned about the lack of evidence of a need for the new restrictions and the fact that Texas did not act to impose similar requirements on much riskier procedures. He consistently responded that the Texas legislature can set much higher standards on facilities that provide abortion than facilities providing much riskier procedures. Then, Justice Kagan asked the question that was on everyone’s mind, “I just want to know why Texas would do that?”
Wednesday’s argument is a good indication that at least half of the Justices understand and take the impact of the Texas law on women’s health and access to abortion seriously. Hopefully, that understanding and respect for women’s health will be reflected in the Court’s decision.
Wednesday, March 2, 2016
The Supreme Court hears oral argument in Whole Woman's Health v. Hellerstedt today, its first major abortion case in many years. In D.C., the Center for Reproductive Rights has organized the Rally to Protect Abortion Access at the Supreme Court from 8 AM-noon.
If you would like to learn more about the case, SCOTUS blog provides commentary on the case and links to the briefs filed, including the 45 amicus briefs filed supporting Whole Woman's Health. In the past few days, major news sources have summarized and commented on the case:
- International Business Times (Feb. 29,2106): Whole Woman's Health vs. Hellerstedt: What to Know About the US Supreme Court's Next Abortion Case, by Adam Lidgett
- The Atlantic (Feb, 29, 2016): Will the Supreme Court Take Precedent Seriously on Abortion?, by Garrett Epps
- RH Reality Check (Feb. 29, 2016): Is One-Sixth a 'Large Fraction' When It Comes to Our Constitutional Rights?, by David S. Cohen and Jeffrey B. Bingenheimer
- Christian Science Monitor (Feb. 28, 2016): In Texas, a side of abortion debate few ever see, by Warren Richey
- New York Times (Feb. 27, 2016): Why Courts Shouldn't Ignore the Facts About Abortion Rights, by Linda Greenhouse
And, if you still want to learn more, John Oliver's Last Week Tonight provides a funny, in-depth summary of the case.