Monday, June 27, 2016
United States Supreme Court (Jun. 27, 2016): Whole Woman's Health v. Hellerstedt:
In a 5-to-3 decision, the United States Supreme Court has overturned a Texas law that threatened to drive more than half of Texas's abortion clinics out of business and place abortion services beyond the reach of countless women.
Drawing on tenets established in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the Court struck down a law requiring doctors performing abortions to have admitting privileges at a hospital and requiring clinics performing abortions to meet the standards imposed upon surgical centers. Regarding the admitting privileges requirement, the Court noted that the practice of abortion did not present a safety issue. Moreover, abortion is safe enough that requiring clinics to meet the requirements of surgical centers would be superfluous. Finally, the court could not reconcile the law with the lack of regulation of more dangerous surgical procedures and the wide distribution of waivers of the surgical-center requirements to clinics offering non-abortion services. It declared that the restrictions placed substantial obstacles in the path of women seeking previability abortions in Texas.
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.
Tuesday, February 23, 2016
Atlantic (Feb. 19, 2016): The Muddled Future of Reproductive Rights, by Julie Rovner:
Prior to Justice Scalia's death, the Supreme Court frequently voted 5-4 votes on controversial decisions. Following Justice Scalia's death, there is a chance that the Court could deadlock, 4-4 in cases this term. When there is a tie vote, the appellate court's decision will stand, but it does not create national precedent.
This March the Supreme Court is scheduled to hear two reproductive rights cases, one on abortion and one on contraceptive insurance coverage. Whole Women's Health v. Hellerstadt challenges a Texas law that imposes restrictions on abortion clinics. The district court struck down the law, but the Fifth Circuit's decision reversed the district court and would allow the law to go into effect with minor changes. Zurbik v. Burwell challenges the religious accommodation that has been created for religious-affiliated institutions who wish to opt-out of contraceptive coverage. Current rules do not require that religious hospitals or schools contract for contraceptive coverage. Instead, they must inform the government who their insurer is so that the government can arrange for coverage. The lower courts in the cases consolidated in Zurbik found that the administration's rules don't violate religious rights.
Because appellate courts have ruled differently on both the contraceptive regulations and the constitutionality of laws like the Texas law challenged in Whole Women's Health, a tied Supreme Court decision would prolong Circuit splits. If the Supreme Court cannot reach a decision in the two cases, it can also hold them over and re-hear them next term.
Wednesday, February 17, 2016
Ms. Magazine Blog: Texas Anti-Abortion Law is Having a Predictably Terrible Effect on Women, by Lily Wujek:
The University of Texas at Austin recently released a study on the impact of Texas's HB2 Anti-Abortion Law on access to contraception and abortion services. HB2, which excludes Planned Parenthood affiliates from Texas' fee-for-service family planning program, is currently under review by the U.S. Supreme Court in Whole Woman's Health v. Hellerstedt.
The study found that after being turned away from a closed clinic, eight of the 23 women interviewed had to wait more than a week to obtain an abortion. Two of these women were not seen until after 12 weeks of pregnancy, despite initially seeking abortion care in the first trimester. Two women in the study could not obtain an abortion at all as both lived in areas of Texas that were left without an abortion provider after HB2 came into effect, and both had initially sought services early in their pregnancies. They ended up continuing their pregnancies because they did not have the resources to travel to another clinic.
According to a press release put out by the University,
After the [passage of HB2], provision of the most effective reversible methods of contraception (IUDs, implants, and injectable contraception) decreased and Medicaid-paid births increased among injectable contraceptive users. Claims for IUDs and implants declined 35 percent and claims for injectable contraceptives declined 31 percent.
The study, entitled Effect of Removal of Planned Parenthood from the Texas Women’s Health Program, is published in the New England Journal of Medicine.
Wednesday, January 13, 2016
New York Times (Jan. 11, 2016): Law on Ultrasounds Reignites the Abortion Debate in a 2016 Battleground, by Richard Fausset:
North Carolina has one of the most restrictive abortion laws in the country, one the Hilary Clinton campaign has called "outrageous." Any doctor who performs an abortion after the 16th week of pregnancy must submit an ultrasound to the state. The state says it wishes to verify that doctors are not performing post-20-week abortions. Opponents of the law, which also extends the mandated waiting period for an abortion to 72 hours, call it an effort to intimidate both doctors, who know that determining gestational age is an inexact science, and women, who may hesitate before allowing information about their pregnancy to be shared with a governmental agency. The law also requires doctors performing abortions after 20 weeks to send the health department the findings and analysis that were used to determine that a medical emergency existed. The controversy has become an important issue in the political sphere, as Democrats harness liberal anger in an attempt to unseat the Republican governor Pat McCrory in his bid for a second term.
Wednesday, January 6, 2016
ThinkProgress (Jan. 5, 2016): The Abortion Case That Could Overturn Roe v. Wade Has a Lot of Opponents, by Alex Zielinski:
This March, the Supreme Court will hear argument in Whole Woman's Health v. Cole to decide whether HB2, a Texas law which places burdensome, unnecessary guidelines on abortion clinics and has already forced more than half of the state's clinic to close is constitutional. The regulations are framed as health regulations, but they have been criticized as having little to do with women's health while imposing costly and unnecessary requirements on clinics.
Reproductive rights advocates have been outspoken since HB2 passed in 2013, but since the Supreme Court’s November decision to hear the case, the diversity of opponents has grown. The 45 briefs were filed by a variety of petitioners, including physicians, historians, religious leaders, military officers, scientists, members of Congress, civil rights advocates, law scholars, entire cities, and the United States federal government itself.
Several of the briefs tell the personal stories of women who have had abortions and the real world impact that HB2 will have on them.
Jessica González-Rojas, the executive director of the National Latina Institute for Reproductive Health, [spoke about] the women already harmed the most by the current Texas law.
“For immigrants, mothers, low-wage workers, and Latinas who are all three, securing an abortion means navigating a state-created obstacle course,” she said. “Those unable to jump through these hoops will be forced to carry an unwanted pregnancy to term or take matters into their own hands.”
The briefs reflect the largest coalition of faith leaders and organizations to oppose anti-choice laws at the Supreme Court level as well as the views of scientists and medical professionals. Argument is set for March 2.
Saturday, December 26, 2015
New York Times (Dec. 19, 2015): The Reproductive Rights Rollback of 2015:
The New York Times reports that no fewer than 288 restrictions on abortion have been enacted since 2011. These include the familiar targeted regulation of abortion providers scheduled for review next year by the Supreme Court. But abortion is being attacked in other ways as well, including extensions of waiting periods, mandated in-person counseling necessitating two separate trips to an abortion provider, and bans on inexpensive medical abortions. Against the backdrop of the forceful move in many states to de-fund Planned Parenthood, the only reproductive health provider for millions of poor women, these efforts reflect an attempt not only to unduly burden but indeed to obliterate entirely every woman's right to manage her reproductive life.
Thursday, December 17, 2015
New York Times (Dec. 14 & 15, 2015): Disposal of Fetal Tissue Debated in Court, Ohio Statehouse and Ohio: Legal Fight on Fetal Disposal:
A federal judge in Ohio has temporarily blocked state officials from taking legal action against Planned Parenthood to enforce a rule governing the disposal of fetal tissue. The order, issued Monday by Judge Edmund Sargus Jr., came in a dispute over how Planned Parenthood handles fetal tissue. Planned Parenthood is suing Ohio’s health director, claiming that the state’s health department changed the interpretation of the disposal rule without notice and then unfairly targeted its three affiliates that provide abortions.
The change in the rule's interpretation came on the heels of an investigation of Planned Parenthood by the Ohio Attorney General that found no evidence that Planned Parenthood made money from aborted fetuses. Planned Parenthood of Ohio claims it has scrupulously followed the law on fetal disposal. The next hearing in the dispute will take place on January 4th.
Tuesday, December 8, 2015
Abortion and the Supreme Court, by Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
In his recent remarks at the What’s the Harm? conference, captured here and in a blog post at Stanford University’s Hoover Institution web site, Professor Richard Epstein explains why he believes the Supreme Court, having granted certiorari, should reverse the Fifth Circuit’s decision in Whole Woman’s Health v. Cole. In that decision, the appeals court upheld the Texas regulations that have drastically reduced the availability of abortion in the Lone Star State. Epstein would have the Court “scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes.”
Epstein criticizes the Fifth Circuit for having given “undue credit to legislative wisdom” and for having made the availability of out-of-state abortions a reason for giving the Texas regulations a pass. The court made plain it was employing a watered-down version of the rational basis test. Epstein objects to the use of this test “to eviscerate the painful compromises wrought in [Planned Parenthood v. Casey].”
Epstein does this even though he has long had profound misgivings about the soundness of Roe v. Wade, which he wrote about as long ago as 1973: Richard A. Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," 1973 Supreme Court Review 159 (1973). But at this point the debate is no longer about how to squeeze out the right of abortion from the Due Process Clause. It is about whether to reverse course some 42 years after the earlier decision was made. That might well be appropriate with a forthright opinion, which comes from the Supreme Court, although it is highly risky to upset a long-established constitutional balance. What is not acceptable is to overrule a decision in the guise of interpreting it, which is what is done when the rational basis test is invoked to insulate the decisions of the Texas legislature from any serious scrutiny.
This rise of the rational basis test did not originate with cases dealing with personal liberties, but with those dealing with questions of property rights. Epstein traces the appeals court’s deference to any “conceivable” legislative purpose to Hawaii Housing Authority v. Midkiff, where the Supreme Court validated Hawaii’s plan to dismantle the “economic evils of a land oligopoly” that, according to Epstein, never truly existed. He traces the appeals court’s invocation of out-of-Texas alternatives to abortion to Ruckelshaus v. Monsanto Co., where the Court reasoned that a law requiring manufacturers to disclose data in connection with the production of pesticides did not effect a taking because Monsanto could avoid the requirement by selling its pesticides only in foreign markets.
Epstein urges those who would criticize the Fifth Circuit’s decision to be consistent. If we believe that the rational basis test was inappropriately invoked in Whole Woman’s Health, we should not complain that, in Burwell v. Hobby Lobby, the Court refused to use it in evaluating a mandate that required even employers with religious objections to provide health-insurance coverage for contraception. We should not, in other words, “split the constitutional universe between those individual rights that merit serious protection and those that do not.” It is very important not to have political preferences determine the appropriate level of scrutiny in constitutional cases. In general, the right test is to give the deference associated with the business judgment rule to the government when it is in charge of running some public institution, like a school or the military. The hard choices require some deference to management expertise, although probably less than in the private sector, because the exit option is weaker with public bodies. But the higher standard does rightly apply when the government acts as a regulator as when it forces the sale of leasehold units in Midkiff, the registration of fungicides in Ruckelshaus, or the operation of private abortion clinics in Whole Woman’s Health.
Thursday, December 3, 2015
Medical Harms of Abortion Restrictions, by David A. Grimes, M.D.
Enacted under the pretense of greater safety for women, oppressive abortion regulations are having a paradoxical effect: endangering American women. Few abortion opponents have the candor to admit the real goal of this epidemic of state legislation. They hope to make safe, legal abortion inaccessible and thus drive women into the back alley once again. This meets the definition of misogyny.
Abortion has been well regulated for decades
A myriad of regulations cover abortion services. However, after Planned Parenthood v. Casey opened the door to more state restrictions, the problem has become epidemic. Having provided abortions in clinics and hospitals for more than four decades, I can report that corridor width (regulated by 10 states) has no relation to safe abortion care.
No public health need exists for more regulations four decades after Roe v. Wade
Abortion remains one of the safest procedures in contemporary medical practice, and that has been true for four decades. Indeed, just two years after Roe v. Wade, the Institute of Medicine documented the public health benefits of safe, legal abortion. According to the federal government, the risk of death from abortion in recent years has been less than 1 death per 100,000 procedures. To put that in some perspective, the risk of death from an injection of penicillin is twice that high. A recent survey of complications after abortion in the state of California confirmed that emergency room visits and hospitalization after abortions are rare.
Compared to what?
The U.S. is an anomaly among developed countries in having a risk of maternal death that is rising, not falling. In the most recent federal report, the risk of death from maternal causes was 16 deaths per 100,000 live births. A comparison of abortion and childbearing risks, published in 2012, found a 14-fold higher risk with childbirth. Because of the increasing risk of childbirth, the disparity is larger today.
Despite medical advances in recent decades, pregnancy, childbirth, and the post-delivery period remain dangerous. According to data from the Centers for Disease Control and Prevention (CDC), a woman’s risk of having one or more pregnancy-related complications is 60%. Given about 4 million births per year in the U.S., that translates into more than 2 million women suffering complications, some being long-lasting.
Delay is dangerous
As documented decades ago, one of the most powerful predictors of abortion safety is the duration of the pregnancy: the earlier the procedure, the safer. Delays of any origin, such as mandatory waiting periods, postpone care to later, more dangerous stages of pregnancy. Studies of the impact of these laws in Texas have confirmed this harm, with delays up to three weeks. When clinics are forced to close because of draconian abortion restrictions, women are also forced into interstate travel to get care. Still others resort to dangerous attempts at self-induced abortion.
Three ethical principles provide the foundation for all health care: beneficence, autonomy, and justice. Beneficence requires that what we do to patients is in their best interests. Autonomy means free choice among available treatment options based on the best available scientific evidence. Justice means equitable access to care. Imposing gratuitous abortion restrictions violates all three criteria by increasing risks to women, limiting treatment choices, and making adequate care dependent upon one’s zip code. Regardless of one’s views of abortion, new regulations must be rejected as unethical.
Bad old days redux?
In the year that I was born, more than 700 women died in the U.S. from dangerous, clandestine abortions. The population of the nation was less than half of that today. Despite the well-documented health benefits of safe, legal abortion for women and their families, some want to return women to the back alley again. Our response as a nation must be “never again.”
Wednesday, October 14, 2015
Scotus Blog (Oct. 9, 2015): Relist Watch OT2015Edition, by John Elwood:
Currier v. Jackson Women's Health Clinic was one of several cases relisted by the court last week, but a conference has yet to be scheduled.
A challenge to a similar Texas law arrived at the Court in June. The Court issued a stay in that case, Whole Women’s Health v. Cole, 15-274, by a five-to-four vote. The Court likely rescheduled Currier to allow Whole Women’s Health, which is still being briefed, to “catch up.” Since a stay requires a showing of a “reasonable probability” of a cert. grant and a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous, there is a good chance we’ll see a grant of at least one of these cases once all the briefing is in.
Tuesday, October 6, 2015
Texas Evaluation Project (Oct. 5, 2015): Wait Time to Obtain an Abortion is Increasing in Texas as Clinics Close:
The amount of time women have to wait before they can get an appointment at an abortion clinic in Texas has increased, according to research performed by the Texas Policy Evaluation Project (TxPEP). Wait times have gotten particularly long in Dallas and Ft. Worth after a large-volume clinic closed in June 2015, with women having to wait up to 20 days on average in these cities.
TxPEP is a five year effort to document and analyze the impact of reproductive health measures passed by the 82nd and 83rd Texas Legislature. In addition to reporting current wait times, researchers cautioned that if Texas HB2 goes into effect wait times would become much longer. If wait times exceed 20 days, many women would be pushed from first to second tri-mester abortions, and second term abortions could rise from 6,600 to 12,400.
Sunday, October 4, 2015
Mother Jones (September/October 2015): The War on Women is Over - And Women Lost by Molly Redden:
This is what 2015 looks like: Abortion providers struggle against overwhelming odds to stay open, while women "turn themselves into pretzels" to get to them, as one researcher put it. Activists have been calling it the "war on women." But the onslaught of new abortion restrictions has been so successful, so strategically designed, and so well coordinated that the war in many places has essentially been lost.
Restrictions on the provision of abortion have closed clinics across the nation and create an ongoing struggle for clinics to remain open. This article discusses how state laws have transformed all facets of how women get abortions and have created severe obstacles to getting one.
Friday, October 2, 2015
Daily Camera: Battle for Women's Reproductive Rights Goes on Every Day, by K.C. Becker:
State legislatures across the country have become popular battlegrounds for limiting reproductive freedom for women. Anti-choice activists have been launching well-coordinated assaults in state after state by churning out bills designed to indirectly limit or eliminate a woman's legal right to get an abortion. These new laws shut down clinics by putting new requirements and restrictions on the clinics, doctors, or patients.
Becker predicts that some of these restrictions will eventually be declared unconstitutional. "But rest assured" she warns, "that they will be coming back, across the country, with new variations on an old theme." Becker reminds us that the battle did not end with Roe v. Wade.
Sunday, September 27, 2015
RH Reality Check (9/22): Lawsuit Asks Oklahoma Supreme Court to Block Anti-Choice Omnibus Bill, by Jessica Mason Pieklo:
Continuing its pro-choice advocacy in Oklahoma, the Center for Reproductive Rights has petitioned the Oklahoma Supreme Court to block a TRAP law that is scheduled to come into force on November 1st. Pieklo writes:
SB 642 includes language that advocates claim could be interpreted to bring felony charges for any violation of the more than 140 statutes targeted at physicians and medical facilities providing abortion.
The lawsuit was filed on behalf of one of only two abortion providers in the state.
Thursday, April 30, 2015
Jessica Ettinger (Notre Dame) has posted Seeking Common Ground in the Abortion Regulation Debate on SSRN. Here is the abstract:
This Note argues that requiring abortion clinics to adhere to the same standards as ambulatory surgical centers is unconstitutional, at least in the context of those clinics that provide only medication abortion, because it unduly burdens a woman’s right to choose whether to obtain an abortion. Although there may be a rational basis to require abortion clinics offering surgical abortion procedures to meet surgical facility standards, no such basis attends the imposition of those requirements on clinics that provide nonsurgical services. Given the number of clinics that continue to close in the face of this new regulatory legislation — which significantly reduces access to abortion services, increases their cost, and makes them logistically more difficult to procure due to increased geographic travel — it is arguable that even requiring surgical abortion clinics to meet ambulatory surgical center standards will result in an undue burden.
At the same time, however, state legislators have a valid interest in ensuring that abortion procedures are conducted in a safe manner. Although abortion clinics currently are subject to regulatory oversight outside the realm of state-specific statutes, the requirements currently in place govern the privacy of patients’ health records, laboratory testing practices, and workplace health and safety, but do not address directly the regulation of surgical procedures.
In light of the constitutional problems embedded in current state efforts to regulate abortion clinic facilities and the shortcomings of federal regulatory efforts, it may be time to entertain a different approach to abortion clinic regulation. Part I presents the legal framework and standards currently governing abortion legislation. Part II utilizes this foundation to evaluate current problems in state regulatory practices, spotlighting two pieces of recent state legislation that seek to impose ambulatory surgical center standards on all abortion clinic facilities within their borders. Lastly, Part III introduces and outlines an alternate means of regulation — accreditation — that offers common ground in the abortion debate by serving everyone’s interest in providing safe, accessible medical services to women.
Saturday, March 21, 2015
The Journal Sentinel: Judge rules Wisconsin abortion law unconstitutional, by Daniel Bice & Cary Spivak:
A federal judge on Friday struck down a Wisconsin law requiring doctors performing abortions to get hospital-admitting privileges, concluding that the measure was enacted primarily to provide an obstacle for women seeking abortions.
U.S. District Judge William Conley, who earlier had put the law on hold, ruled that the 2013 law is unconstitutional. He issued a permanent injunction blocking its enforcement. . . .
The opinion is available here.
Wednesday, March 4, 2015
NPR - blog: Abortion Restrictions Complicate Access For Ohio Women, by Jennifer Ludden:
Ohio may not have gotten the national attention of say, Texas, but a steady stream of abortion restrictions over the past four years has helped close nearly half the state's clinics that perform the procedure.
"We are more fully booked, and I think we have a harder time squeezing patients in if they're earlier in the pregnancy," says Chrisse France, executive director of Preterm. It's one of just two clinics still operating in Cleveland, and its caseload is up 10 percent. . . .
Tuesday, February 24, 2015
ThinkProgress: The Nation’s Most Restrictive Anti-Abortion Law Just Reached The Supreme Court, by Ian Millheiser:
A Mississippi law that would eliminate access to abortion within that state — a law so restrictive that it was halted by one of the most conservative federal appeals courts in the nation — arrived in the Supreme Court on Wednesday after the state filed a petition asking the justices to hear the case. Should the Court agree to do so, Mississippi could win the right to close down its only abortion clinic. . . .
Wednesday, February 11, 2015
ThinkProgress: The Massive Push To Restrict Abortion In 2015, by Tara Culp-Ressler:
On the heels of a record-breaking number of new abortion restrictions that have been enacted over the past four years, state lawmakers are continuing to push forward with a stringent anti-abortion agenda in 2015.
By last week, states had already introduced more than 100 bills intended to regulate access to abortion, according to researchers at the Henry J. Kaiser Family Foundation. Lawmakers are working to restrict the procedure in more than half the states in the country . . . .