Thursday, January 22, 2015
JURIST (commentary): Fourth and Fifth Circuits Confront Abortion Exceptionalism, by Caitlin Borgmann:
Federal Courts of Appeals have recently addressed two important abortion cases, either of which could end up before US Supreme Court. Last week, the US Court of Appeals for the Fifth Circuit heardoral arguments on the merits of a Texas law that requires abortion facilities to meet hospital-like building and construction standards. The US Court of Appeals for the Fourth Circuit issued a decision[PDF] in late December striking down a North Carolina pre-abortion ultrasound law that requires abortion providers to perform a sonogram before an abortion and to display and describe it to the woman. Each case is important for abortion rights in different ways, but a common theme the cases raise is the question of abortion exceptionalism: whether courts should treat abortion as an exceptional case when states purport to regulate it for health and safety reasons (in the Texas case) or when state restrictions encroach on the right against compelled speech (in the North Carolina case) . . . .
Tuesday, January 20, 2015
The New York Times editorial: A Perilous Year for Abortion Rights:
The start of 2015 finds no letup in the attacks on a woman’s constitutionally protected right to make her own childbearing decisions. Republican lawmakers and organizations devoted to dismantling reproductive freedom have succeeded in shrinking the already inadequate number of abortion providers, making it exceedingly difficult, if not impossible, for women — especially young and poor women — to obtain safe and legal abortion services in large swaths Texas and other parts of the country. . . .
Thursday, January 8, 2015
JURIST: Federal judge enters final ruling on Indiana abortion clinic law, by Steven Wildberger:
Judge Jane Magnus-Stinson of the US District Court for the Southern District of Indiana[official website] entered a permanent injunction Wednesday barring Indiana law IC 16-18-2 [text], which would redefine what qualifies as an abortion clinic and shut down Planned Parenthood's Lafayette facility. The law was barred for imposing rules on facilities that provided only medical abortions that would not have been imposed on physicians' offices providing the same service, violating the Equal Protection Clause of the Fourteenth Amendment [text]. . . .
Wednesday, January 7, 2015
The New York Times: Texas Abortion Clinic Rules Tested in Appeals Court, by Erik Eckholm:
Lawyers for abortion clinics squared off with Texas state attorneys in a federal appeals court here on Wednesday, arguing over the constitutionality of stringent abortion clinic rules that would force more than half the remaining abortion providers in Texas to close.
But more is at stake than whether large portions of South and West Texas will be left with no abortion clinics, forcing some women to drive hundreds of miles for an abortion, for safety reasons that doctors and clinic owners call a pretense.
The case argued here — along with others arising from the hundreds ofabortion restrictions adopted by more than half of the states in recent years — poses issues that are likely to end up before the Supreme Court in the next year or two, many legal experts say . . . .
Al Jazeera America: Texas abortion clinics: How far is too far to drive?, by Michael Keller & Marisa Taylor:
Is 150 miles too far to drive in order to get an abortion? In some parts of Texas, that distance could get a lot longer, and it’s up to a federal appeals court to decide whether that places too much of a burden on women seeking to end their pregnancies. . . .
“It’s always been a little bit unclear exactly what constitutes an ‘undue burden,’” said Caitlin Borgmann, a professor at CUNY School of Law with expertise on reproductive rights law. . . .
“If women can’t access abortions, then the right is meaningless,” Borgmann said. “This very much goes to the core of what it means to be a constitutional right to abortion.”
The Al Jazeera America story includes interactive maps that show what parts of Texas would be left without any available abortion clinics if the ambulatory surgical center requirement is upheld.
Monday, December 15, 2014
The New York Times: Justices Let Abortion Decision Stand, by Adam Liptak:
The Supreme Court on Monday let stand a decision temporarily blocking an Arizona law that limits the availability of medicinal, nonsurgical abortions. As is its custom when it denies review, the court gave no reasons for its action.
The law, enacted in 2012, requires abortion providers to comply with a 2000 protocol from the Food and Drug Administration for mifepristone, anabortion-inducing drug that is sometimes called RU-486. . . .
The 2000 protocol calls for the drug to be given in higher doses than is customary today, and only in the first seven weeks of pregnancy. . . .
This denial is interesting in part because the Supreme Court had previously agreed to review a similar law from Oklahoma, which had been struck down by the Oklahoma Supreme Court. The U.S. Supreme Court had then certified questions to the Oklahoma Supreme Court regarding the law's interpretation. The Oklahoma Supreme Court read the law broadly, in a way that would have prohibited all medication abortions, including to treat ectopic pregnancies. After receiving the Oklahoma Supreme Court's interpretation, the U.S. Supreme Court in November 2013 dismissed the writ of certiorari as improvidently granted. It seemed possible that the U.S. Supreme Court would still be interested in reviewing a medication abortion restriction that was interpreted more narrowly as requiring adherence to the FDA-approved protocol. The Ninth Circuit decision on the preliminary injunction assumed for purposes of the opinion that the Arizona law only reached this far, but still found it to constitute an undue burden.
Friday, December 5, 2014
ThinkProgress: Inside The Highly Sophisticated Group That’s Quietly Making It Much Harder To Get An Abortion, by Erica Hellerstein:
. . . Not unlike the American Legislative Exchange Council (ALEC), AUL functions as de facto legislation mill for like-minded politicians and on-the-ground anti-abortion activist groups — offering model legislation that, according to itswebsite, “enables legislators to easily introduce bills without needing to research and write the bills themselves.” The organization operates in relative obscurity despite its exceptionally far reach. According to an email obtained by ThinkProgress that was sent to AUL supporters, the group is responsible for one third (74) of the 200-plus anti-abortion laws that have passed since 2010. . . .
Monday, December 1, 2014
The Los Angeles Times op-ed: 'TRAP laws' are a threat in disguise to abortion rights, by Caitlin Borgmann:
Last month, ballot measures that would have given embryos the legal rights of persons were decisively rejected in Colorado and North Dakota. The defeats were hailed as a victory for defenders of the right to legal abortion. But such measures serve as a distraction from a far bigger threat to abortion rights from onerous rules known as Targeted Regulation of Abortion Providers, or "TRAP laws." . . .
Saturday, November 29, 2014
Politico: The coming wave of anti-abortion laws, by Paige Winfield Cunningham:
New GOP state legislatures will make access to abortion harder than ever.
The big Republican gains in the November elections strengthened and enlarged the anti-abortion forces in the House and the Senate. But it’s the GOP victories in the statehouses and governor’s mansions that are priming the ground for another round of legal restrictions on abortion. . . .
Thursday, November 20, 2014
The Jackson Clarion-Ledger: 5th Circuit refuses to reconsider Mississippi's abortion law, by Jimmie E. Gates:
The full 5th Circuit U.S. Court of Appeals has refused to reconsider a ruling blocking Mississippi from enforcing a law requiring doctors who perform abortions in the state to have admitting privileges at local hospitals.
In late July, a panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 that the law is unconstitutional because it would close Mississippi's only abortion clinic. . . .
The panel decision was notable for ruling that a state may not rely on the availability of abortion in neighboring states in arguing that its own restrictions do not impose an undue burden. In this case, the admitting privileges law threatened to shut down Mississippi's last remaining abortion clinic. Professor Jonathan Will and I exchanged views on the panel decision in August.
Tuesday, November 4, 2014
Oklahoma Supreme Court Temporarily Blocks Admitting Privileges Law and Medication Abortion Restrictions
The New York Times: Oklahoma Supreme Court Blocks 2 Abortion Laws, by Timothy Williams:
The Oklahoma Supreme Court on Tuesday blocked two new laws that critics say may have made it difficult for women to obtain abortions in the state.
The measures, approved by the State Legislature and signed into law by Gov. Mary Fallin, took effect Nov. 1.
But in a unanimous decision released Tuesday, the State Supreme Court voted to prevent enforcement of the rules until lawsuits challenging their constitutionality are settled by a lower court. . . .
Friday, October 24, 2014
RH Reality Check: Oklahoma Court Refuses to Block Admitting Privileges Requirement, by Jessica Mason Pieklo:
Oklahoma can enforce its new anti-abortion admitting privileges requirement beginning November 1, a state district court judge ruled Friday.
SB 1848 mandates all reproductive health care clinics have a physician with admitting privileges at a local hospital on-site when abortion procedures are performed. . . .
Thursday, October 23, 2014
Reuters: Oklahoma judge allows law on abortion pills to take effect, by Heide Brandes:
An Oklahoma judge said on Wednesday he will allow a law governing the use of an abortion-inducing drug to take effect as planned on Nov. 1, over the objections of abortion rights advocates who said the measure is poor public health policy that could put women at risk. . . .
In case anyone is having a sense of deja vu in reading this story: a similar Oklahoma law made it up to the U.S. Supreme Court, briefly, before the Court changed its mind and decided not to hear the case. The Oklahoma Supreme Court had invalidated the law, and the state sought U.S. Supreme Court review. After granting cert, the U.S. Supreme Court certified two questions to the Oklahoma Supreme Court seeking clarification about the scope of the statute. After the Oklahoma court answered these questions and interpreted the statute broadly, the U.S. Supreme Court dismissed the writ as improvidently granted.
Friday, October 17, 2014
RH Reality Check: The Hidden Costs of Abortion Restrictions, by Carole Joffe (Univ. of Calif.):
“You walk into our surgery center and it’s so cold and scary. There’s no art. The lights are bright, the recovery rooms smell like bleach. All the staff are wearing gowns and head and foot covers and the patients have to wear the same thing … and there’s nothing comforting about it. The warmth is gone.”
As recent events in Texas have made clear, when it comes to abortion care, the worst outcome of the current onslaught of state-imposed targeted regulations of abortion providers (TRAP laws) is the forced closing of clinics. But even clinics in affected states that manage to stay open suffer costs. . . .
Wednesday, October 15, 2014
The New York Times: Texas Abortion Clinics to Reopen Despite a Future in Legal Limbo, by Erik Eckholm:
A day after the Supreme Court blocked a Texas law that had forced abortion clinics to close, some of the shuttered facilities prepared to reopen, pleased at the reprieve but mindful that the legal fight was far from over.
Tuesday’s order increased the chances, legal experts said, of a major face-off in the Supreme Court over a crucial question: What restrictions add up to an “undue burden” on a woman’s right to abortion? . . .
While the order did not necessarily reveal how or whether the Supreme Court might ultimately rule, it did indicate that the justices “saw the potentially irrevocable damage if the clinics were forced to close,” said Caitlin E. Borgmann, a professor at the CUNY School of Law in New York.
. . . The basic issue, Ms. Borgmann said, is how much a state may restrict abortion without banning it altogether.
“How much travel is too much? How much do costs matter? These are questions the Supreme Court has never answered,” Ms. Borgmann said, adding that appeals of the Texas law could give the court an opportunity to clarify the issue. . . .
The New York Times: Supreme Court Allows Texas Abortion Clinics to Stay Open, by Adam Liptak:
The Supreme Court on Tuesday allowed more than a dozen Texas abortion clinics to reopen, blocking a state law that had imposed strict requirements on abortion providers. Had the law been allowed to stand, it would have caused all but eight of the state’s abortion clinics to close and would have required many women to travel more than 150 miles to the nearest abortion provider.
The Supreme Court’s order — five sentences long and with no explanation of the justices’ reasoning — represents an interim step in a legal fight that is far from over. But abortion rights advocates welcomed what they said was the enormous practical impact of the move. Had the clinics been forced to remain closed while appeals went forward, they said, they might never have reopened. . . .
The Supreme Court, in an unsigned order apparently reflecting the views of six justices, blocked the surgical-center requirement entirely and the admitting-privileges requirement as it applied to clinics in McAllen, Tex., and El Paso.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. said they would have allowed the law to be enforced. . . .
See also: SCOTUSblog: Court blocks abortion limits in Texas, by Lyle Denniston.
This is significant, because when the Court last November considered only the admitting privileges portion of this law on an emergency basis, it refused to block the Fifth Circuit's ruling that allowed the law to take effect. That time, the 4 liberal Justices dissented.
Friday, October 3, 2014
Fifth Circuit Panel Allows Texas Ambulatory Surgical Center Law To Take Effect, Shutting Down Most of State's Clinics
The New York Times: Reversal Allows Abortion Law, Forcing 13 Texas Clinics to Close, by Manny Fernandez:
Thirteen abortion clinics in Texas were forced to close immediately after a federal appellate court on Thursday sided with Texas in its yearlong legal battle over its sweeping abortion law and allowed the state to enforce one of the law’s toughest provisions while the case was being appealed.
The decision by a three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, will have a far-reaching effect on abortion services in Texas, lawyers for abortion providers said. The ruling gave Texas permission to require all abortion clinics in the state to meet the same building, equipment and staffing standards as hospital-style surgical centers, standards that abortion providers said were unnecessary and costly, but that the state argued improved patient safety. . . .
Nearly two-thirds of abortion clinics in Texas must close immediately after a federal appeals court ruled Thursday that the state could enforce its law requiring those facilities to be built to the same stringent standards as hospitals.
The requirement is part of a sweeping piece of legislation called House Bill 2, which includes several measures that undermine women’s access to abortion. The mandate was struck down in late August by a federal judge in Austin, who ruled that it was unconstitutional because it put an undue burden on women seeking healthcare. He put the requirement on hold while the state appealed. . . .
The decision is available here.
Friday, September 12, 2014
Bloomberg: Texas Claims Abortion Restrictions Don’t Pose Burden, by Daniel Lawton & Laurel Brubaker Calkins:
A Texas law restricting abortions which would leave open only seven or eight clinics doesn’t place an undue burden on women’s rights, a state official argued in a bid to enforce a law previously ruled unconstitutional.
Texas asked the U.S. Court of Appeals in New Orleans today to let it require that abortion clinics meet the same construction standards as outpatient surgical centers while the court considers its appeal. A lower court threw out the law as unconstitutional. Opponents argued that enforcement of the overturned law would cause more than a dozen clinics to close overnight. The three-judge panel didn’t immediately rule on the Texas request. . . .
NPR: A Doctor Who Performed Abortions In South Texas Makes His Case, by Wade Goodwyn:
In a Brownsville family clinic, a powerfully built, bald doctor treats a never-ending line of sick and injured patients. He has been practicing for nearly four decades, but family medicine is not his calling.
"For 35 years I had a clinic where I saw women and took care of their reproductive needs, but mostly terminating pregnancies," Dr. Lester Minto says.
He seems an unlikely doctor to perform abortions. The son of an Army officer, he grew up in a deeply religious family in rural Texas. His career path was shaped by an experience in medical school in the early '70s. . . .
Monday, September 8, 2014
The National Law Journal: Next Wave for Abortion Law Courts, by Tony Mauro:
Judges struggle to define "undue burden" standard
Slowly but surely, a new wave of abortion-related litigation is making its way to the U.S. Supreme Court, with the ultimate outcome uncertain.
A stop-and-start round of rulings and stays that blocked enforcement of new restrictions on abortion clinics in Texas last week was just the latest sign that, 41 years after Roe v. Wade, courts are still grappling with the issue. . . .
The National Law Journal (Op-Ed): Rulings Illuminate Abortion Standard, by Caitlin Borgmann:
With scant guidance from Supreme Court, lower courts are grappling with "undue burden" test
Onerous restrictions on abortion facilities are prompting lower courts to sit up and take notice. Late last month, federal judges in Texas and Louisiana blocked such laws from taking effect, at least temporarily.
Some courts, in evaluating the constitutionality of these laws, are interpreting the governing undue-burden standard — the U.S. Supreme Court's governing standard for the constitutionality of abortion regulations — in new ways that meaningfully consider the facts and purposes underlying the laws, as well as their real-world effects. The Supreme Court justices would do well to adopt these interpretations when they finally address one of these restrictions. . . .
Thursday, September 4, 2014
The New York Times: Texas Abortion Clinic to Reopen After Ruling, by Erik Eckholm:
An embattled abortion clinic in McAllen, Tex., which was the last provider of abortions in the vast Rio Grande Valley when new state restrictions forced it to stop last fall, will start operating again by this weekend, its owner said Wednesday, after last week’s favorable decision by a federal judge.
But whether the clinic, a branch of Whole Woman’s Health, and at least a dozen others in the state can remain open for long will be determined by a federal appeals court, which has scheduled a hearing for Sept. 12 in New Orleans. . . .
Monday, September 1, 2014
MSNBC: Fragile victories for abortion access in the South, by Irin Carmon:
In a single weekend, with temporary wins for abortion providers in Louisiana and Texas, one fact became ever clearer: The federal courts are the only thing standing between conservative lawmakers and a woman’s right to an abortion. For now, the news is good for abortion access in the region, but it is a fragile shield – one that may be breached in a matter of days. . . .