Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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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. . . .

________________________________

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. . . . 

________________________________

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)

Tuesday, July 29, 2014

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)

Tuesday, July 22, 2014

Comic Relief on TRAP Laws, Courtesy of The Onion

The Onion: New Anti-Abortion Legislation Requires Doctors To Scale 18-Foot Wall Surrounding Clinic:

In an effort to make certain that physicians who perform the procedure are fully qualified to do so, a new state law passed Tuesday will require Mississippi doctors to climb an 18-foot wall before entering any medical facility providing abortions.

The Clinic Fortification and Physician Excellence Act calls for the construction of concrete barriers nearly two stories tall and 4 feet thick around all clinics offering abortion services, and for physicians working at these sites to scale such barricades unassisted, a landmark piece of legislation that supporters hailed as a victory for women’s health.

“No woman, in this state or any other, should ever receive care from a medical professional incapable of climbing an 18-foot wall,” said Governor Phil Bryant . . . .

July 22, 2014 in Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Half of Texas Abortion Clinics Have Closed in Wake of Restrictions

NPR - Shots blog: Half Of Texas Abortion Clinics Close After Restrictions Enacted, by Carrie Feibel:

In a little over a year, the number of clinics that provide abortions in Texas fell to 20 from 41, and watchdogs say that as few as six may be left by September.

Many clinics closed because of a requirement that doctors at those clinics obtain hospital admitting privileges within a certain radius of the clinic, and many doctors couldn't comply. The requirement took effect last November. This week marks the first anniversary of the state law that started it all. . . .

July 18, 2014 in State and Local News, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Senate Judiciary Committee Holds Hearing on Women's Health Protection Act

View the Senate Judiciary Committee hearing held today, July 15, on the Women's Health Protection Act on C-Span here.

Slate - The XX Factor blog: The Democrats’ Brilliant Idea for How to Stop Unnecessary Abortion Clinic Regulations, by Amanda Marcotte:

Democrats in the Senate on Tuesday took a major step in pushing back against the growing trend of regulations that are designed to shut down safe abortion clinics. The Senate Judiciary Committee is hearing testimony on a bill introduced by Sens. Richard Blumenthal and Tammy Baldwin, a bill that would do significant damage to anti-choice efforts to go around Roe v. Wade by regulating abortion clinics out of existence. It's called the Women's Health Protection Act, and it would end the attacks on abortion clinics through one simple measure: requiring states to regulate abortion providers in exactly the same way they do other clinics and doctors who provide comparable services. No more singling out abortion providers. . . .

The New York Times - editorial:  A Defense of Reproductive Rights:

Facing a torrent of state laws restricting access to safe and legal abortions, supporters of a woman’s right to make her own childbearing decisions have been forced to play a defensive game — trying to block enactment of the laws, and, when that doesn’t work, challenging them in court. An important hearing of the Senate Judiciary Committee on Tuesday could begin to move the dynamics of the fight in a positive direction. . . .

July 15, 2014 in Abortion, Congress, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2014

Fewer Abortion Restrictions Enacted in the First Half of 2014

Guttmacher Institute: States Continue to Enact Abortion Restrictions in First Half of 2014, But at a Lower Level Than in the Previous Years:

So far this year, 13 states have adopted 21 new restrictions designed to limit access to abortion, about half the number (41) of similar restrictions that had been enacted by this point last year. These restrictions range from requirements that abortion providers have admitting privileges at local hospitals to bans on insurance coverage to limitations on medication abortion. At the same time, and building on momentum from last year, three states moved to protect access to abortion services, while four states and the District of Columbia took steps to improve access to other reproductive health services...

Several reasons exist for the drop in abortion restrictions. Some of the decline is the result of cyclical trends, as states historically have shorter sessions in election years and some state legislatures that have been particularly active on abortion issues (Montana, Nevada, North Dakota and Texas) are not in session in even-number years (see A Surge of State Abortion Restrictions Puts Providers—and the Women They Serve—in the Crosshairs). In addition, an array of other issues (responses to the heroin epidemic, the expansion of full-benefit Medicaid as allowed by the Affordable Care Act, the common core educational initiative and minimum wage increases) moved to the front burner in many legislatures, perhaps limiting legislative attention to abortion. . . .

July 14, 2014 in Abortion, State Legislatures, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 9, 2014

Senate Judiciary Committee To Hold Hearing on Women's Health Protection Act

The Senate Judiciary Committee will hold a hearing on S.1696, The Women’s Health Protection Act: Removing Barriers to Constitutionally Protected Reproductive Rights on July 15.  The hearing will be live streamed on the Committee's website.

Via the Center for Reproductive Rights:

The Women's Health Protection Act would prohibit laws and regulations that single out the provision of abortion services for restrictions that are more burdensome than those imposed on medically comparable procedures, do not significantly advance women's health or the safety of abortion services, and make abortion services more difficult to access. The bill currently has 34 co-sponsors in the Senate and 121 in the House.  It includes a list of regulations that are per se violations, which you can read here. . . .

July 9, 2014 in Congress, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Louisiana Faces Reproductive Health Care Crisis Even As It Continues Continues To Enact Anti-Choice Laws

RH Reality Check: In Louisiana, a New Law, and a Worsening Reproductive Health-Care Crisis, by Teddy Wilson:

It’s a muggy late May morning in New Orleans’ Broadmoor neighborhood, and dozens of area residents are lined up in the rain for a health-care fair at the Rosa Keller Library and Community Center. For many of the people who live in Broadmoor—a predominantly low-income community of color—this is their only access to health care. . . .

June 23, 2014 in Poverty, State and Local News, State Legislatures, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0) | TrackBack (0)