Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Friday, October 17, 2014

TRAP Laws Impose Costs, Even When Clinics Stay Open

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. . . .

October 17, 2014 in Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Texas Abortion Clinics Can Reopen for Now, But Future Is Uncertain

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. . . .

October 15, 2014 in Supreme Court, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Supreme Court Temporarily Blocks Texas Abortion Restrictions, Allowing Clinics to Remain Open

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.

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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.

October 15, 2014 in Abortion, Supreme Court, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

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. . . .

The Los Angeles Times: Most abortion clinics in Texas will be forced to close under court ruling, by Maria L. La Ganga:

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. . . .

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The decision is available here.

October 3, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Fifth Circuit Hears Arguments on Texas TRAP Law

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.  . . .

September 12, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Monday, September 8, 2014

Federal Courts Grapple with "Undue Burden" Standard

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. . . .

September 8, 2014 in Abortion, In the Courts, Supreme Court, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Rio Grande Valley Abortion Clinic Reopens After Last Week's Ruling on Texas Law

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. . . .

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

Monday, September 1, 2014

For Now, Federal Courts Are Protecting Abortion Access, But Will It Last?

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. . . .

September 1, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Federal Judge Blocks Enforcement of Louisiana Admitting Privileges Law

The Wall Street Journal: Judge Blocks Enforcement of New Louisiana Abortion Law, by Cameron McWhirter:

Restrictive New Law Goes Into Effect Monday, But Doctors, Clinics Can't Be Penalized for Not Complying

A federal judge in Baton Rouge, La., on Sunday night issued a temporary restraining order blocking the enforcement of a Louisiana abortion law just hours before it was to take effect.

The law, passed overwhelmingly this year by the state Legislature, requires all abortion doctors in the state to have admitting privileges at a hospital within 30 miles of the clinic where they work. If doctors at clinics don't comply, the clinic can be closed. . . .

September 1, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Saturday, August 30, 2014

The Difficulty of Measuring the Effects of Abortion Restrictions

FiveThirtyEight: It’s Really Hard To Measure The Effects Of Abortion Restrictions In Texas, by Amelia Thomson Deveaux:

Last summer, after Wendy Davis had come and gone, the Texas legislature passed a package of abortion bills that has effectively forced most of the state’s clinics to close. The bills didn’t ban abortion outright, but instead placed new restrictions on abortion providers, such as a mandate for expensive structural changes (e.g. wider hallways and new ventilation systems) for clinics. Proponents said that more rigorous standards would protect women’s health, but obstetricians and pro-choice advocates warned that the law would serve a pro-life agenda, and that its consequences could radically alter options for women in the state. Left with only a handful of clinics in large cities at the center of Texas, women outside urban areas might take matters into their own hands and begin inducing abortions themselves. . . . 

August 30, 2014 in Abortion Bans, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Federal District Judge Strikes Down Onerous Texas Abortion Facilities Regulation

The New York Times: Federal Judge Strikes Down Restrictive Texas Abortion Law, by Erik Eckholm & Manny Fernandez:

A federal judge in Austin, Tex., blocked a stringent new rule on Friday that would have forced more than half of the state’s remaining abortion clinics to close, the latest in a string of court decisions that have at least temporarily kept abortion clinics across the South from being shuttered.

The Texas rule, requiring all abortion clinics to meet the building, equipment and staffing standards of hospital-style surgery centers, had been set to take effect on Monday. But in his opinion, Judge Lee Yeakel of the United States District Court in Austin said that the mandate placed unjustified obstacles on women’s access to abortion without providing significant medical benefits. . . .

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

Thursday, August 14, 2014

Anti-Choice Advocates Track License Plates of Cars Parked at Clinics

Houston Chronicle: Anti-abortion activists adopt a new tactic: tracking license plates, by Brian M. Rosenthal:

Advocates say tactic is legitimate; critics contend that it is intimidation

On nearly every weekday morning between late 2010 and this spring, Eileen Romano stood outside a Beaumont abortion clinic to do what she could to fight a procedure she saw as morally wrong.

Unlike traditional so-called sidewalk advocates, however, Romano did not simply try to talk the arriving women out of having their abortions. She also sought to get the clinic closed with a tactic that is becoming increasingly common in the Texas anti-abortion community: tracking license plates.

Romano wrote down the numbers on the cars that parked outside the facility, checking to ensure the plates showed up twice - for a pre-abortion consultation required by state law and the procedure itself. If a car only came once, she said, it was a sign the doctor had done the abortion without a consultation, and the 63-year-old activist made a note to potentially report to state regulators. . . .

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I don't think the tactic of tracking license plate numbers can accurately be described as "new," but this purported rationale sounds ridiculously far-fetched: What if the driver was not there to obtain an abortion?  What if a patient came to the clinic a different way the second time?

-CEB

August 14, 2014 in Anti-Choice Movement, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Texas Law Could Force Women to Seek Abortions in Mexico

Fox News Latino: Texas Anti-Abortion Law Could Force Women Across The Border For Procedure:

Crossing borders is a part of life in El Paso in far West Texas, where people may walk into Mexico to visit family or commute to New Mexico for work. But getting an abortion doesn't require leaving town.

That could change if a federal judge upholds new Texas rules that would ban abortions at 18 clinics starting Sept. 1, including only one that offers the procedure in El Paso, where one of the toughest anti-abortion laws in the U.S. has come under particular scrutiny at a trial ending Wednesday in Austin. . . .

August 12, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

New York Times Editorial on Alabama Admitting Privileges Law Ruling

The New York Times editorial:  A Judge Rules for Alabama Women on Abortion:

In large parts of the country, women’s access to safe and legal abortion care is increasingly coming to depend on the willingness of judges to rigorously examine and reject new (and medically unnecessary) restrictions imposed by Republican legislatures.

In just that sort of searching review, a federal judge last week struck down as unconstitutional an Alabama law requiring doctors at abortion clinics to have admitting privileges at a local hospital. The requirement — advertised, falsely, as necessary to protect women’s health — is one of the main strategies being deployed nationally by opponents of abortion rights to shrink the already inadequate number of abortion providers. . . .

__________________________________

See my analysis of Judge Thompson's opinion here.  I also argued for the need for closer scrutiny of states' fact-based justifications for abortion restrictions in this short essay for the Harvard Law Review Forum.

-CEB

August 11, 2014 in In the Courts, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Among TRAP Laws, Admitting Privileges Requirements Prove Especially Potent Weapon

The Washington Post: Admitting-privileges laws have created high hurdle for abortion providers to clear, by Sandhya Somashekhar:

Among the raft of abortion restrictions passed by states in the past few years, one did not initially gain much notice — a requirement that doctors performing abortions obtain admitting privileges at a local hospital.

But the measure, which 11 states have passed in some form, has proved an especially high hurdle for abortion providers to clear and a potent tool for antiabortion activists seeking to shut down abortion clinics. . . .

August 11, 2014 in Targeted Regulation of Abortion Providers (TRAP) | 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)

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

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

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. . . . 

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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)