Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Sunday, August 10, 2014

NPR Interviews Author of "Dirty Work," a Novel About an Abortion Provider

NPR:  In 'Dirty Work,' A Doctor Turns To Fiction To Talk About Abortion, by Lourdes Garcia-Navarro:

All surgeons must pick the organ they'll spend their career protecting, Gabriel Weston writes in her new novel, Dirty Work. And as Nancy, the obstetrician-gynecologist at the center of the book, explains, "We gynecologists have the womb to look after. ... And whichever specialty we choose, each of us has to do something ruthless to keep our patient safe: We have to forget about the human significance of the organ we're operating on." . . .

Weston, who is also an ear, nose and throat surgeon, joins NPR's Lourdes Garcia-Navarro to discuss the book. . . .

August 10, 2014 in Abortion, Books | 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)

Thursday, August 7, 2014

Anti-Choice Movement's Tactics Don't Include Persuading Women

The Guardian: Welcome to the beginning of the end of the anti-abortion movement, by Jessica Valenti:

Trying to block women’s access to abortion is a last-resort option for a stuck movement – and a weak spot that pro-choicers should hammer on

The anti-choice movement has worked hard to convince people that it cares about women and what they want. Its (public) rhetoric went from calling women murderers to telling them they “deserve better” than abortion. The movement swears its protestors are kindly grandmothers, not terrifying bullies. It has even started calling itself a group full of feminists!

But no amount of re-branding can hide the true goal of the anti-choicers: forcing women to carry pregnancies they don’t want, by any means. And the truth is that trying to forcibly stop women from getting abortions is a last-resort option for a stuck movement. . . .

August 7, 2014 in Anti-Choice Movement | Permalink | Comments (0) | TrackBack (0)

The Importance of Contraception to Women's Equality

Cornerstone:  Contraception: A Prescription for Women's Equality, by Kara Loewentheil:

One of the few mercies of the Supreme Court's opinion in Burwell v. Hobby Lobby Inc. last month was its acceptance of the Government's argument that access to contraception is indeed a compelling governmental interest (see pages 39-40 of the majority opinion). Justice Kennedy's concurrence (see pages 2-3), in particular, stressed that this vote for the majority's holding hinged on his belief that the government could achieve its compelling interest in a different manner without burdening the rights of the women whose contraceptive access would be affected. But we should not be too sanguine about this aspect of the holding, because it too is under attack. . . .

August 7, 2014 in Contraception, Supreme Court | 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

Justice Ginsburg Frustrated by Court's Failure To Advance Women's Rights

The New York Times:  Justices’ Rulings Advance Gays; Women Less So, by Adam Liptak:

When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.

In its gay rights rulings, she told a law school audience last week, the court uses the soaring language of “equal dignity” and has endorsed the fundamental values of “liberty and equality.” Indeed, a court that just three decades ago allowed criminal prosecutions for gay sex now speaks with sympathy for gay families and seems on the cusp of embracing a constitutional right to same-sex marriage.

But in cases involving gender, she said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality. . . .

August 5, 2014 in Supreme Court, Women, General | Permalink | Comments (0) | TrackBack (0)

Radical Feminists and Transgender Rights

The New Yorker: What is a Woman?, by Michelle Goldberg:

The dispute between radical feminism and transgenderism.

O May 24th, a few dozen people gathered in a conference room at the Central Library, a century-old Georgian Revival building in downtown Portland, Oregon, for an event called Radfems Respond. The conference had been convened by a group that wanted to defend two positions that have made radical feminism anathema to much of the left. First, the organizers hoped to refute charges that the desire to ban prostitution implies hostility toward prostitutes. Then they were going to try to explain why, at a time when transgender rights are ascendant, radical feminists insist on regarding transgender women as men, who should not be allowed to use women’s facilities, such as public rest rooms, or to participate in events organized exclusively for women. . . .

August 5, 2014 in Culture, Women, General | Permalink | Comments (0) | TrackBack (0)

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)

Monday, August 4, 2014

Jonathan Will on Fifth Circuit Decision Enjoining Mississippi's Admitting Privileges Law

Bill of Health (Harvard Law School Petrie-Flom Center):  MS Admitting Privilege Law Struck Down by 5th Circuit, by Jonathan Will:

On July 29, 2014 a panel of the 5th Circuit struck down a Mississippi statute that would have effectively closed the only remaining abortion clinic in the state. Just four months ago a different panel of the 5th Circuit upheld a nearly identical statute enacted in Texas. Both statutes require physicians performing abortions to have admitting privileges in local hospitals.

The differing results are unremarkable because both the purpose and effects prongs ofCasey’s undue burden analysis are necessarily fact driven. But there are some open questions worth highlighting from the decisions. The Mississippi law raises a matter of first impression. Namely, of what relevance is it, if any, that Mississippi women would have to cross state lines to obtain an abortion if the law was upheld? After all, even if the last abortion clinic closed, Mississippi women would have a shorter distance to travel to obtain such services than some Texas women now have because of the other 5th Circuit decision.

Continue reading

August 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Analysis: Judge Myron Thompson's Opinion on Alabama Law Employs a Fresh and Useful Template for Applying the Undue Burden Standard

Today, U.S. District Judge Myron Thompson issued a decision – following a 10-day bench trial – declaring unconstitutional Alabama's admitting privileges requirement for abortion providers.  The decision is remarkable in at least two respects.  First, Judge Thompson employs a brilliant interpretation of Planned Parenthood v. Casey that is different from any lower court opinion I have seen and yet that is well-grounded in the decision.  (He had already laid out this framework in an earlier ruling on summary judgment.)  It resolves a longstanding puzzle about the undue burden standard, namely whether and how a court should factor in the state's burden of justification for an abortion restriction when it conducts an undue burden analysis.  Judge Thompson focuses in on a little-noticed aspect of Casey, namely its reliance on ballot-access case law.  The Casey joint opinion analogizes to the states’ “substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote,” in order to explain why “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.”  Yet, in describing the state’s power to regulate elections as “similar” to its power to regulate abortion, the Court suggests that its analysis in the ballot access cases is instructive in the abortion context. 

Judge Thompson takes up this suggestion.  He points out that, in the specific cases that the Casey joint opinion cites, the Court looked at whether the state’s interest in the election regulation was “sufficiently weighty” to justify the restriction it imposed.  In Anderson v. Celebrezze, for example, the Court explained that, when analyzing constitutional challenges to specific provisions of a state's election laws, the Court

must first consider the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Judge Thompson applies this framework, first analyzing the burden that Alabama’s admitting privileges requirement would impose on abortion access in the state.  Finding that the burden would be substantial, he then closely examines the state’s purported justifications for the law and concludes that they are “exceedingly weak.” 

Planned Parenthood v. Casey holds that a law is unconstitutional if it has either the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” But the “purpose prong” of this test has been under-utilized, particularly after the Supreme Court’s 1997 per curiam decision in Mazurek v. Armstrong.  Given the brazenness of recent state attempts to eliminate abortion access under the guise of protecting women’s health, courts have shown renewed interest in examining the justifications for these laws.  I have argued, as have others, that such examination of the states’ purposes is critical.  Judge Thompson’s opinion offers a logical path for courts to do this, following a model that Casey itself endorses.

The second remarkable aspect of Judge Thompson’s opinion is his keen awareness of and compassion for what it is like to be an abortion provider amid a climate of hostility, violence, and professional risks and hurdles.  Judge Thompson opens his factual background section with this discussion, remarking, “[T]his court cannot overlook the backdrop to this case: a history of severe violence against abortion providers in Alabama and the surrounding region.”  These facts are relevant to the court’s conclusion that the admitting privileges requirement would heavily limit abortion access.  Were the law to take effect and thereby eliminate abortion services in Mobile, Birmingham, and Montgomery – as the judge concludes it would – there are “very good reasons to expect that no one would step in to provide abortion services.”

Judge Thompson’s approach to evaluating admitting privileges laws – and other abortion restrictions – under the undue burden standard makes sense, relies on an established framework for balancing a state’s justification for a law with that law’s burden on certain constitutional rights, and is well-supported by the Casey opinion.  It should provide a useful template for courts evaluating the latest wave of abortion regulations.

-CEB (cross-posted on Bill of Health)

August 4, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Declares Alabama TRAP Law Unconstitutional

The Washington Post:  Federal judge: Alabama can’t enforce its new abortion law, by Amy Ohlheiser:

A federal judge has told the state of Alabama that it can’t enforce a new law requiring doctors at abortion clinics to have admitting privileges in nearby hospitals U.S. District Judge Myron Thompson said in his decision Monday that the challenged portion of Alabama’s 2013 abortion law places an undue burden on women in the state, as the Alabama Media Group reported. . . . 

________________________________

The decision is available here.

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

Thursday, July 31, 2014

Does Hobby Lobby Open Door To Renewed Conscience-Based Claims for Exemptions from Abortion Restrictions?

MSNBC: Satanists Aren't the Only Ones Following Hobby Lobby's Lead, by Irin Carmon:

On Monday, the Satanic Temple drew headlines for declaring that, in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, it was “asserting a religious exemption from the burden of state mandated ‘informational’ abortion materials for those who share their deeply held beliefs.”

In other words, they wanted a conscience clause from laws intended to dissuade women from having abortions by mandating an ultrasound or that a doctor impart biased or medically-inaccurate information about abortion. . . .

But the Satanists are hardly the first to use religion to make an affirmative argument for reproductive rights. For decades, pro-choice activists have been trying to make a religious claim for their view – and generally failing. . . .

But now that the Supreme Court has opened the door to more robust religious exemptions under RFRA, there might be a new opportunity for supporters of abortion rights to try their luck. . . .

July 31, 2014 in Abortion, Religion, Religion and Reproductive Rights, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Senator Shaheen Introduces Access to Contraception for Women Servicemembers and Dependents Act

InsuranceNewsNet:  Shaheen Introduces Legislation to Expand Access to Contraception for Military Women, Dependents:

Legislation supported by women's health care advocates would also boost access to comprehensive family planning counseling

Today, U.S. Senator Jeanne Shaheen (D-NH) introduced legislation, the Access to Contraception for Women Servicemembers and Dependents Act of 2014, which would overhaul current Department of Defense'spolicy on contraceptive coverage and family planning counseling. The bill would bring health care provided by the military in line with current law for civilian populations by ensuring that all women who receive health care through the United States military have access to all FDA-approved contraception with nohealth insurance co-pay. The bill would also require the Department of Defense to develop and implement family planning counseling for all servicewoman at specific points during her service. . . .

July 31, 2014 in Congress, Contraception | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

New York City Restriction on Abortion Protest, Mentioned by Supreme Court, Appears Largely Ineffective

The New York Times: New York’s Abortion Protest Law Is Praised by Justices, but Few Others, by Benjamin Mueller:

A crowd of abortion opponents converged on Zena Khan outside of the Choices Women’s Medical Center in Jamaica, Queens, on a recent Saturday. As a blurred mustard sun broke through the morning haze, Ms. Khan sped past posters depicting dismembered fetuses, flip cameras trained on her face and protesters demanding that she get back in her car and leave. . . .

“Should I call the cops?” she asked the escorts, her hands flying like agitated birds around her head. “I’m not even pregnant.” . . .

To the unfamiliar observer, the scene, repeated almost every Saturday morning at Choices and other clinics that perform abortions in New York City, would appear to be nothing so much as unbridled chaos. But it is also seen as one model for how abortion protests in the United States should be managed. . . .

July 30, 2014 in Anti-Choice Movement, State and Local News, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Mass. Governor Patrick Signs New Law Addressing Anti-Abortion Protest

The Washington Post/Reuters: Governor signs new law on abortion protests:

Massachusetts Gov. Deval L. Patrick (D) on Wednesday signed into law a measure allowing police to order anti-abortion protesters away from clinic entrances if their presence impedes public access.

The measure comes a month after the U.S. Supreme Court struck down a 2007 Massachusetts law prohibiting protests within 35 feet of the entrances of reproductive health facilities, a measure that the top court found violated the right to freedom of speech. . . .

July 30, 2014 in Anti-Choice Movement, State and Local News | Permalink | Comments (0) | TrackBack (0)

UN Human Rights Report Criticizes Countries With Draconian Abortion Laws

ThinkProgress:  UN Warns Countries With Draconian Abortion Bans That They’re Violating Human Rights, by Tara Culp-Ressler:

United Nations officials are urging several countries with particularly harsh abortion bans to increase legalization of the medical procedure, pointing out their current laws could be in breach of international human rights treaties.

In its periodic reviews of member countries’ policies to ensure they’re compliant with the Geneva Conventions, the UN Human Rights Committee is recommending that Ireland and Chile update their abortion laws to ensure access for more women. Those two countries have some of the most restrictive abortion policies in the world; Chile imposes a total ban on the procedure, while Ireland has a nearly total ban with an extremely narrow exception. . . .

July 30, 2014 in Abortion, International | Permalink | Comments (0) | TrackBack (0)

Researchers Predict Legalizing Prostitution Would Lower the Spread of HIV Infections

Jezebel: Legalizing Prostitution Could Lower the Spread of HIV by One-Third, by Hillary Crosley:

Here's a crazy thought; legalizing prostitution could reduce the number of international HIV infections for female sex workers by at least a third in several countries. Health experts presented this new research drawn from Canada, India and Kenya during the 20th International AIDS Conference in Melbourne, Australia on Tuesday. . . .

July 30, 2014 in International, Reproductive Health & Safety, Sexually Transmitted Disease | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

"Pro-Choice" Label Loses Favor for Failing To Reflect Broader Range of Reproductive Issues

The New York Times: Advocates Shun ‘Pro-Choice’ to Expand Message, by Jackie Calmes:

For all the talk about women’s issues in this year’s midterm election campaigns, something is missing. One of the most enduring labels of modern politics — pro-choice — has fallen from favor, a victim of changed times and generational preferences.

That shift might seem surprising in this political season, when there has been a renewed focus on reproductive issues like access to abortion and birth control. Yet advocates say that the term pro-choice, which has for so long been closely identified with abortion, does not reflect the range of women’s health and economic issues now being debated. . . .

July 29, 2014 in Pro-Choice Movement | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Panel Rules Mississippi's Admitting Privileges Law Cannot Be Enforced Against State's Sole Remaining Clinic

SCOTUSblog: Last abortion clinic in Mississippi may be spared, by Lyle Denniston:

In a ruling that is likely to mean that the only abortion clinic still operating in Mississippi will not have to close, the U.S. Court of Appeals for the Fifth Circuit ruled on Tuesday that a two-year-old state law regulating clinics cannot be enforced against that facility in the city of Jackson.  The ruling, dividing the panel two to one, is here. . . .

July 29, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Sunday, July 27, 2014

Gov. Christie Urges Republicans To Soften Rhetoric, But Not Position, on Abortion

Bloomberg Business Week: Christie Call to Cool Abortion Talk Follows Curbs in N.J., by Elise Young:

Chris Christie, who last week prodded Republicans to drop anti-abortion rhetoric to appeal to more voters, has steadily weakened access to the procedure in New Jersey.

Even with a Democratic-controlled legislature committed to reproductive rights, the second-term governor’s annual funding cuts for women’s health services have prompted at least six clinics to close since 2010, according to lawmakers. . . .

July 27, 2014 in 2016 Presidential Campaign, Abortion, Politics | Permalink | Comments (0) | TrackBack (0)