Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, August 4, 2020

Congress Introduces Legislation to Repeal Helms Amendment Prohibiting US Foreign Aid for Abortions

First-Ever Legislation to Repeal Helms Amendment: Abortion is Healthcare Everywhere Act

Today, Congress introduced the Abortion is Health Care Everywhere Act of 2020—the first-ever legislation to repeal the Helms Amendment. The bill was introduced by Rep. Jan Schakowksy (D-Ill.) and co-sponsored by Reps. Nita Lowey (D-N.Y.), Barbara Lee (D-Calif.), Jackie Speier (D-Calif.), Ayanna Pressley (D-Mass.), Diana DeGette (D-Colo.) and Norma Torres (D-Calif.).

 

Established in 1973 (notably the same year as the Roe decision), the Helms Amendment—introduced by former Sen. Jesse Helms (R-N.C.), an ultraconservative senator marked by blatant racism and other odious behavior—dictates U.S. foreign aid cannot be used for abortions.

 

Though there are exceptions for rape, incest and threat to the pregnant person’s life, in practice, the Helms Amendment has created a complete ban on abortion funding abroad—even in countries where abortion is legal.

 

Since its enactment, the Helms Amendment has been criticized as an imperialist, ideological, racist and classist policy.

 

“The Helms Amendment is a policy deeply rooted in racism,” said Rep. Schakowsky. “It imposes our arbitrary and medically unnecessary abortion restrictions on international communities, allowing the United States to control the health care and bodily autonomy of billions of Black and brown people around the world.”

 

Moreover, many argue abortion restrictions like Helms have led to the avoidable deaths of thousands of women by coercing them to seek unsafe alternatives.

 

According to the Guttmacher Institute, 35 million women per year have abortions in potentially lethal conditions. What’s more, unsafe abortions are one of the leading causes of maternal mortality worldwide. 

The bill is here: Abortion is Healthcare Everywhere Act: "To amend the Foreign Assistance Act of 1961 to authorize
the use of funds for comprehensive reproductive health care services, and for other purposes."

August 4, 2020 in Abortion, International, Legislation, Reproductive Rights | Permalink | Comments (0)

Thursday, July 23, 2020

Study Calls into Question Anti-Abortion Legal Arguments about Regret and Harm to Women

New Yorker, The Study That Debunks Most Anti-Abortion Arguments

Over the past several years, findings from the Turnaway Study have come out in scholarly journals and, on a few occasions, gotten splashy media coverage. Now Foster has published a patiently expository precis of all the findings in a new book, “The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having—or Being Denied—an Abortion.” The over-all impression it leaves is that abortion, far from harming most women, helps them in measurable ways. Moreover, when people assess what will happen in their lives if they have to carry an unwanted pregnancy to term, they are quite often proven right. That might seem like an obvious point, but much of contemporary anti-abortion legislation is predicated on the idea that competent adults can’t really know what’s at stake in deciding whether to bear a child or not. Instead, they must be subjected to waiting periods to think it over (as though they can’t be trusted to have done so already), presented with (often misleading) information about the supposed medical risks and emotional fallout of the procedure, and obliged to look at ultrasounds of the embryo or fetus. And such scans are often framed, with breathtaking disingenuousness, as a right extended to people—what the legal scholar Carol Sanger calls “the right to be persuaded against exercising the right you came in with.

 

Maybe the first and most fundamental question for a study like this to consider is how women feel afterward about their decisions to have an abortion. In the Turnaway Study, over ninety-five per cent of the women who received an abortion and did an interview five years out said that it had been the right choice for them.

July 23, 2020 in Abortion, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, July 7, 2020

June Medical Returns SCOTUS Precedent to Less Demanding Standard of Casey

Caroline Mala Corbin, June Medical is the New Casey

The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo.  At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.

 

To understand what this means, let me provide a brief background on abortion and the Supreme Court.  As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. WadeRoe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.

 

What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate.  According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine.  An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden.  Outlawing a safer procedure? No undue burden.  Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.

 

Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion.  But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder.***

 

However, also similar to CaseyJune Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not.  Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like CaseyJune Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.

July 7, 2020 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Women are Being Written Out of Abortion Jurisprudence

Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence

It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russothe major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.

 

In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***

 

There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roeand  Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and processThe regard for a woman’s right to choose itself? That doesn’t even register as material.

July 7, 2020 in Abortion, Constitutional, Judges, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, June 29, 2020

SCOTUS Upholds Right to Abortion, Strikes Down Physician Admitting Privileges Law

Today the US Supreme Court decided June Medical Services v. Russo striking down Louisiana's anti-abortion admitting privileges law.

The majority opinion by Justice Breyer reaffirms the legal standard of Whole Women's Health.  It is a process-heavy decision about third-party standing and a painfully detailed discussion of the district court findings.

Chief Justice Roberts joins the liberal justices in the majority on grounds of stare decisis.  This was essentially the same case as Whole Women's Health v. Hellerstadt (2016).  He also rejects the cost-benefit balancing test of Whole Women's Health, leaving only a plurality of the Court endorsing that standard and returning to the core undue burden standard of Casey.

There are multiple dissenting opinions by the remaining four justices.  Much of the debate devolves into a tangential discussion about deference to district court findings and as applied challenges. 

No woman justice wrote any opinion.  Every male justice wrote an opinion expressing his views.

June 29, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, June 10, 2020

Webinar: Past, Present and Future of the Law and Politics of Reproduction

The Center for Public Health Law Research at Temple University’s Beasley School of Law is sponsoring a webinar with the Harvard Law and Policy Review on the past, present, and future of the law and politics of reproduction on June 30, 2020 at 12:00 p.m. ET.

In the wake of the Supreme Court’s landmark decision, June Medical Services v. Russo, we are convening the authors of four influential books on reproductive justice and health, Professors David S. Cohen, Michele Goodwin, Carol Sanger, and Mary Ziegler, for a timely conversation moderated by NPR’s Sarah McCammon. There will be time for questions from participants. 

To register for the webinar, please visit https://bit.ly/JuneMedicalCPHLR

June 10, 2020 in Abortion, Conferences, Reproductive Rights | Permalink | Comments (0)

Monday, June 1, 2020

Contracting Pregnancy and the Laws of Regulating Surrogacy

Rachel Rebouche, Contracting Pregnancy, 105 Iowa L. Rev. (2020)

Several states recently have passed laws that permit and regulate gestational surrogacy, changing course from the prohibitions that characterized an earlier era. These statutes require mental health counseling before pregnancy and legal representation for all parties to the contract. Scholars and practitioners alike herald this legislation as the way forward in protecting the interests of both intended parents and surrogates. State law, however, may not resolve a recurrent tension over who controls prenatal decision making in gestational surrogacy agreements. Intended parents want authority to make decisions regarding the pregnancy. Contract provisions cater to that desire and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to manage their prenatal care.

Analyzing the most controversial terms of surrogacy contracts—those governing prenatal testing, prenatal behavior, and abortion—this Article demonstrates that neither statutory rights nor contractual remedies adequately address disputes over prenatal care. Rather, mental health professionals who provide pre-pregnancy counseling and lawyers who draft surrogacy contracts have greater effect on parties’ expectations and conduct. Lawyers, in implementing surrogacy contracts, help build trust between parties that induces compliance with otherwise unenforceable terms. When there is a conflict between the parties, lawyers diffuse it.

This Article identifies the consequences of relational contracting for surrogacy, including shielding parties’ behavior from view and entrenching the power of fertility agencies and brokers. It concludes by suggesting how law might challenge the dominance of professionals and agencies by opening the fertility market to a broader population of participants.

June 1, 2020 in Abortion, Family, Healthcare, Pregnancy | Permalink | Comments (0)

United Nations Working Group Declares Eight US States In Breach for COVID Restrictions on Abortion

US States Manipulating Covid-19 Pandemic to Restrict Abortion Access, Rights Experts Charge

Members of the UN Working Group on Discrimination against Women and Girls issued a statement on Wednesday expressing regret that states such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee “appear to be manipulating the crisis” to curb women’s reproductive rights.

 

UN experts are concerned some US states – such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee – appear to be manipulating crisis measures to restrict access to essential. services.

 

“This situation is also the latest example illustrating a pattern of restrictions and retrogressions in access to legal abortion care across the country. We fear that, without clear political will to reverse such restrictive and regressive trends, states will continue pursuing this pattern,” said Elizabeth Broderick, Vice-Chair of the Working Group.***

 

The Working Group was also extremely concerned by the US insistence to remove references to “sexual and reproductive health and its derivatives” from the Global Humanitarian Response Plan (HRP) on COVID-19, as expressed through a letter on 18 May from USAID to the UN Secretary-General.

 

“We reiterate that sexual and reproductive health services, including access to safe and legal abortion, are essential and must remain a key component of the UN’s priorities in its responses to the COVID-19 pandemic,” said Ms. Broderick.

 

“Removing references to sexual and reproductive health from the HRP will have devastating consequences for women worldwide. It will seriously undermine the international community’s joint effort to respond to women’s health needs in this time of crisis.”

 

Global Times, US Women's Rights Breach

Some US states are exploiting the coronavirus crisis to restrict access to abortion, a group of independent United Nations (UN) rights experts said on Wednesday.

Eight states have used COVID-19 emergency orders - which suspend medical procedures not deemed immediately necessary - to limit access to pregnancy terminations, said the UN Working Group on Discrimination against Women and Girls.

The group singled out Alabama, Arkansas, Iowa, Louisiana, Ohio, Oklahoma, Tennessee and Texas.

"We regret that the above-mentioned states, with a long history of restrictive practices against abortion, appear to be manipulating the crisis to severely restrict women's reproductive rights," said the group's vice-chair Elizabeth Broderick.

The independent experts do not speak for the UN but report their findings to the world body.

 

"For many women in the US, bans on abortion during this pandemic will delay abortion care beyond the legal time limit or render abortion services completely inaccessible," said Broderick.

Those who do seek termination services will be forced to travel interstate, thereby risking their own health and disregarding public health guidelines, the experts said.

"Abortion care constitutes essential health care and must remain available during the COVID-19 crisis," Broderick added.

"Restrictions on access to comprehensive reproductive health information and services, including abortion as well as contraception, constitute human rights violations and can cause irreversible harm."

The group said it was "inherently discriminatory" to women to deny them access to services only they require.

June 1, 2020 in Abortion, Healthcare, International | Permalink | Comments (0)

Thursday, May 28, 2020

Doctors File Lawsuit to Lift Restrictions on Abortion Pill During Pandemic

Lawsuit Asks FDA to Lift Restrictions on Abortion Pill During Pandemic

Reproductive rights advocates are suing the Trump administration, asking a federal court to suspend restrictions on the abortion drug mifepristone during the coronavirus pandemic.

 

The drug mifepristone was approved by the U.S. Food and Drug Administration 20 years ago for use in medication abortions in early pregnancy. It's also used to help manage miscarriages for some women trying to avoid surgery.

 

In a federal lawsuit filed in Maryland on behalf of the American College of Obstetricians and Gynecologists (ACOG) and other groups, the American Civil Liberties Union requests an emergency order lifting regulations requiring patients in the United States to pick up the drug at a hospital or medical facility.

 

Julia Kaye, an attorney with the American Civil Liberties Union, said that requirement is putting patients at risk during the COVID-19 pandemic.

 

"A patient who has already been evaluated by a clinician, either through telemedicine or at a prior in person visit, still must make this entirely unnecessary trip just to pick up their prescription," Kaye said during a conference call announcing the lawsuit.

 

ACOG supports lifting the restrictions, called the Risk Evaluation and Mitigation Strategy or REMS, and has said they are medically unnecessary to preserve patient safety. In 2017, the ACLU filed a federal lawsuit in Hawaii, seeking to force the FDA to remove the REMS for mifepristone.

 

But this new lawsuit is more narrow, Kaye said, in asking the court to suspend the rules during the pandemic only. The lawsuit asks for an emergency order allowing the mifepristone to be dispensed through the mail or by pharmacies. It notes that in other areas of medicine, federal agencies "have taken substantial action ... to encourage telemedicine use" and "forego unnecessary in-person visits" during the coronavirus crisis.

May 28, 2020 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Friday, May 22, 2020

"Jane Roe" from Roe v. Wade Retracts Anti-Abortion Conversion in Posthumous Documentary, "AKA Jane Roe"

Michelle Goldberg, Jane Roe's Pro-Life Conversion Was a Con

It was a cultural coup for the right when McCorvey publicly turned against legal abortion. Jane Roe rejecting Roe v. Wade was something abortion opponents could throw in the faces of pro-choice activists. So it is a bombshell that McCorvey has revealed, in the posthumous new documentary “AKA Jane Roe,” that it was, at least in some sense, an act. “I am a good actress,” she said.

 

The movie, which debuts on Friday on FX, also makes clear that anti-abortion leaders understood this. They’ve been perpetrating a scam on us all for 25 years.

 
In the documentary’s final 20 minutes, McCorvey, who died of heart failure in 2017, gives what she calls her “deathbed confession.” She and the pro-life movement, she said, were using each other: “I took their money, and they put me out in front of the cameras and told me what to say, and that’s what I’d say.”
 

In her career as a pro-life icon, she collected nearly half a million dollars. But at the end of her life, she once again affirmed a belief in the right to abortion, and evinced pride in Roe v. Wade. “Roe isn’t going anywhere,” she said early on election night in 2016, when she thought Hillary Clinton was going to win. “They can try, but it’s not happening, baby.”***

 

Given the political damage done by her cynical about-face, it’s surprising how sympathetic McCorvey — campy, foul-mouthed and irreverent — comes off. She was a lost soul from a traumatic background. Her father was absent and her mother beat her, and she ended up in reform school after running away from home at 10. She entered an abusive marriage at 16, became addicted to drugs and alcohol, and lost custody of her first child.

 
As she’s told the story, she signed up as the plaintiff in Roe v. Wade not because she wanted to make history but because she was desperate for an abortion. She never got one: By the time the case was decided, she’d given birth and put the baby up for adoption.

 

Later, McCorvey resented not being given a more prominent role as a pro-choice activist. The movement found her embarrassing, especially when, in 1987, she admitted that she’d lied when she’d said the pregnancy at the heart of Roe was a result of rape.***

 

“She was not the poster girl that would have been helpful to the pro-choice movement,” Charlotte Taft, a former director of the Abortion Care Network, says in the film. “However, an articulate, educated person could not have been the plaintiff in Roe v. Wade.” It was women like McCorvey — those without the resources to travel to pro-choice states — who endured forced childbirth in the years before Roe was decided. “People who are plaintiffs in cases are usually messy people,” said Kissling.

 

Many of the headlines about “AKA Jane Roe” have emphasized that McCorvey was paid to renounce abortion rights, but after watching it I don’t think it was all about money. McCorvey wanted respect and attention, to be honored and cherished. At times, people in the pro-choice movement tried to help her; for a while she was represented by the feminist superlawyer Gloria Allred. She made money giving speeches and selling the rights to her story, including for an Emmy-winning made-for-TV movie.

May 22, 2020 in Abortion, Constitutional, Pop Culture, Reproductive Rights | Permalink | Comments (0)

Tuesday, March 31, 2020

5th Circuit Upholds Texas Ban on Abortions During Coronavirus Pandemic, Staying Contrary Ruling of District Court

Appeals Court Allows Texas to Ban Abortions During Pandemic

A federal appeals court on Tuesday ruled that Texas can temporarily enforce a ban on abortions as part of its coronavirus response.

 

The 5th Circuit Court of Appeals issued a temporary stay on a ruling from a lower court that had blocked Texas from enforcing the ban. State officials argue the ban is intended to conserve medical supplies for health workers on the front lines of the coronavirus response. But abortion rights advocates say states are using the pandemic as an excuse to block access.

 

In a 2-1 opinion, the appeals court ruled that the order from the lower court be stayed until an appeal from Texas is considered. The two judges who ruled in favor of a stay were nominated to their posts by President Trump and former President George W. Bush.

 

"The temporary stay ordered this afternoon justly prioritizes supplies and personal protective equipment for the medical professionals in need," Texas Attorney General Ken Paxton said in a statement Tuesday. 

 

Circuit Court Judge James Dennis, a Clinton appointee, dissented, writing “a federal judge has already concluded that irreparable harm would flow from allowing the executive order to prohibit abortions during this critical time.” 

 

Texas Gov. Greg Abbott (R) issued a directive earlier this month suspending nonessential medical procedures in an effort to conserve masks and gloves for health workers on the front lines of the pandemic. 

See also CBS News, Texas Abortion Ban Can Go Back into Effect, 5th Circuit Court of Appeals Rules

Several states have issued similar orders, but a divide has emerged between red and blue states about whether abortion is an essential procedure.

March 31, 2020 in Abortion, Constitutional, Courts, Reproductive Rights | Permalink | Comments (0)

Federal Courts Enjoin States' Attempts to Prohibit Exercise of Abortion Rights During Coronavirus Pandemic

Reuters, US Judges Stop Texas, Ohio, Alabama From Curbing Abortions During Coronavirus 

Federal judges on Monday blocked officials in Texas, Ohio and Alabama from banning most abortions in those states as part of their orders to postpone surgeries and other procedures deemed not medically necessary during the coronavirus crisis.

 

U.S. District Judge Lee Yeakel in Austin ruled that Paxton’s action “prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable.”

 

The Texas lawsuit was filed last Wednesday after clinics said they were forced to cancel hundreds of appointments for abortions across the state.

 

“Abortion is essential healthcare, and it’s a time-sensitive service, especially during a public health crisis,” said Amy Hagstrom Miller, president of Whole Woman’s Health, an abortion provider with three clinics in Texas and a plaintiff in the case.

Dahlia Lithwick, Federal Judges Block Texas and Ohio Coronavirus Abortion Bans

There was bad news on Monday for states trying to use the coronavirus pandemic to halt abortions: Two federal judges ruled that pretextual pretexts are just pretexts. Clinics in Ohio and Texas will remain open, at least for the time being. As my colleague Christina Cauterucci reported last week, Republican governors in both Ohio and Texas tried opportunistically to halt abortions in their states by claiming that the procedures are not-essential and that states should redirect personal protective equipment, including masks and gloves, away from clinics so they can better serve coronavirus patients. Of course, women actually need abortion services even more during such crises, clinics don’t use most of the essential medical equipment necessary to fight the virus, and most abortions are time-sensitive procedures that can’t be delayed indefinitely.

 
Texas and Ohio weren’t alone, though. Iowa, Mississippi, Alabama, and Oklahoma had all recently moved to suspend abortion access using the same excuses. The Texas guidance, which was particularly draconian, would have applied to “any type of abortion that is not medically necessary to preserve the life of the mother,” and violations would include a $1,000 fine or up to 180 days in jail. Meanwhile, Ohio’s deputy attorney general, Jonathan Fulkerson, had sent letters to a handful of abortion clinics accusing them of violating the Ohio order, but the clinics had replied that they were in compliance and continued to perform procedures.
 
 
Two of these suits have already paid dividends. On Monday, U.S. District Judge Lee Yeakel lifted Texas’ restriction on abortion just a few hours before Senior U.S. District Judge Michael Barrett enjoined Ohio officials from implementing their ban. In his opinion judge Yeakel, a George W. Bush appointee, found that Texas’ attempt to shut down abortions would cause “irreparable harm” to abortion clinics and their patients, and rested his decision in the constitutional right to terminate a pregnancy: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure,” Yeakel wrote. “This court will not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.” 

WSJ, Judges Block States From Limiting Access to Abortion During Coronavirus Pandemic [pay wall]

Federal judges for now blocked Texas, Ohio and Alabama from curbing most abortions amid the new coronavirus pandemic, after the states recently cited the need to preserve medical equipment and public health as reasons to halt the procedure.

Coronavirus in Ohio: Judge Temporarily Blocks State Health Order Blocking Abortions During Coronavirus 

U.S. District Court Judge Michael Barrett ruled that Ohio's abortion clinics could perform surgical abortions if they could not be delayed because of a medical condition or the delay would prevent the abortion under Ohio law. 

 

The Ohio Department of Health had threatened to apply the ban on all elective surgeries to surgical abortions, effectively banning all abortions after 10 weeks gestation, according to a motion filed by Ohio's surgical abortion clinics, including Planned Parenthood of Southwest Ohio, on Monday. 

 

Barrett, who granted the temporary restraining order later for 14 days, said the state had not proven that performing surgical abortions would "result in any beneficial amount of net saving of PPE (personal protective equipment) in Ohio such that the net saving of PPE outweighs the harm of eliminating abortion," Barrett wrote.

Iowa, Ohio Sued Over Abortion Bans During Coronavirus Crisis

State officials in Iowa and Ohio were hit with lawsuits on Monday over their decisions to ban abortion during the coronavirus outbreak. 

 

Both states recently deemed abortion a nonessential surgical procedure that must be deferred or canceled in order to preserve medical supplies for the pandemic.

 

Planned Parenthood Federation of America and the American Civil Liberties Union of Iowa and Ohio are asking district courts to immediately restore abortion access, arguing that it’s an essential, time-sensitive procedure that has been improperly categorized as elective.

 

A growing number of states largely governed by Republicans are using the coronavirus outbreak to crack down on abortion. In addition to Ohio and Iowa, Texas and Mississippi have ordered health care facilities to stop providing abortions.***

 

Leading medical experts, such as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics and Gynecology have urged state leaders to classify abortion as a time-sensitive, essential medical procedure that cannot be delayed.

March 31, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Friday, March 27, 2020

How Ohio Women Legislators are Working to Keep Abortion Access Available

This is my local rep, supporting the constitutional rights of women.

How Ohio Women Legislators Are Working to Keep Abortion Clinics Open

Last weekend, Ohio Attorney General Dave Yost ordered Ohio reproductive health clinics to cease providing abortions—claiming that abortion services are not “essential” medical care during the COVID-19 pandemic.

When Ohio state House Representative Tavia Galonski—chair of the Ohio Women’s Democratic Legislative Caucus—first heard the news, she felt rage.

“Now is not the time to overturn the U.S. Constitution in the middle of a pandemic,” she said.

After his announcement, Attorney General Yost faced immediate pushback from abortion rights advocates and pro-choice state legislators.

Following a round of intense negotiations, Ohio clinics remain open.

March 27, 2020 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Pandemic Sparks New Front in Abortion Laws

Pandemic Sparks New Front in Abortion Wars

The coronavirus pandemic is deepening the divide on abortion access between blue and red states by sparking a debate over whether the procedure is medically essential.

 

Anti-abortion forces led by Republican governors in Ohio, Texas and Mississippi are citing the critical shortage of medical supplies in trying to close abortion clinics, in some instances threatening jail time if they don't shut down and donate protective gear and other necessities to local hospitals. Meanwhile, in blue states like New York, Washington and New Jersey, governors are deeming abortion and family planning clinics an essential service that can continue during the pandemic.***

 

Progressive states that have implemented broad orders shutting down businesses during the pandemic, such as Washington, have clarified that they consider abortion and family planning clinics an essential service that can continue during the pandemic. New Jersey Gov. Phil Murphy was one of a handful of Democratic leaders to explicitly carve out an exception for “the full range of family planning services and procedures, including terminations of pregnancies” from his executive order that suspends elective surgeries.

 

Meanwhile in New York, clinics are working to expand access to medication abortion. Planned Parenthood is conducting more assessments over its telehealth platform so eligible patients only have to come to centers to pick up medication, as is required by law.

March 27, 2020 in Abortion, Healthcare, Reproductive Rights | Permalink | Comments (0)

Tuesday, March 24, 2020

States Ban Abortions as Part of Coronavirus Shutdowns

.NYT, Texas and Ohio Include Abortion as Medical Procedures that Must be Delayed

Texas and Ohio have included abortions among the nonessential surgeries and medical procedures that they are requiring to be delayed, setting off a new front in the fight over abortion rights in the middle of the coronavirus pandemic in the United States.

 

Both states said they were trying to preserve extremely precious protective equipment for health care workers and to make space for a potential flood of coronavirus patients.

 

But abortion rights activists said that abortions should be counted as essential and that people could not wait for the procedure until the pandemic was over.

Ohio Halts Procedures at Abortion Clinics Amid COVID-19 Outbreak

Pro-choice groups such as the American Civil Liberties Union and Planned Parenthood say the order is an excuse from the state to restrict access to abortion.

 

Ohio's legislators have sought to curb people's access to abortion prior to the pandemic.

 

“Planned Parenthood’s top priority is ensuring every person can continue accessing essential healthcare, including abortion,” Planned Parenthood of Ohio said in a statement, adding that they are still being compliant with the state order. 

 

“Under that order, Planned Parenthood can still continue providing essential procedures, including surgical abortion, and our health centers continue to provide services that our patients depend on,” they added.

Yost Orders Clinics to Stop Non-Essential and Elective Abortions (Ohio)

Despite a state health order banning non-essential procedures during the coronavirus health emergency, Ohio abortion clinics remained open last week.

 

But after receiving complaints, Ohio Attorney General Dave Yost ordered two of them to follow Ohio Department of Health Director Amy Acton’s orders.

 

“You and your facility are ordered to immediately stop performing non-essential and elective surgical abortions. Non-essential surgical abortions are those that can be delayed without undue risk to the current or future health of a patient,” Yost said.

 

“If you or your facility do not immediately stop performing non-essential or elective surgical abortions in compliance with the [health director’s] order, the Department of Health will take all appropriate measures.”

 

On Wednesday, Acton issued an order saying “all non-essential or elective surgeries and procedures that utilized [personal protective equipment] should not be conducted.” The state is attempting to preserve supplies of equipment needed in combating the vir

Texas is the Latest State Using Coronavirus to Stop Abortions

Republicans in states around the country are doing their best to use the growing coronavirus epidemic in order to push through their rightwing, anti-abortion agendas. The latest—on Sunday night, Texas Governor Greg Abbott issued an executive order to “postpone all surgeries and procedures that are not immediately medically necessary” until April 21. In response, the state’s Attorney General Ken Paxton ordered all abortion clinics to stop providing “any type of abortion that is not medically necessary to preserve the life or health of the mother,” or face penalties of up to $1,000 or 180 days of jail time.

 

The move by Republican officials in Texas comes on the heels of Ohio’s attorney general’s office ordering abortion clinics in Dayton, Cleveland, and Cincinnati to “immediately stop performing non-essential and elective surgical abortions.”

 

Framing these moves as a way to ensure that health care professionals have the resources they need, which is what officials in both Texas and Ohio have done, is an incredibly manipulative and underhanded way to sneak in anti-abortion measures under the guide of public health. In a statement to Jezebel, NARAL Pro-Choice Texas executive Aimee Arrambide wrote, “Abortion is essential healthcare, but especially in the wake of the public health crisis we are facing now.... Abortion is a procedure where time is of the essence and cannot be delayed without profound consequences.”

Abortion Care is Essential Health Care

Over the weekend, two states made moves to ban certain abortions under the guise of preparing for the expected surge in coronavirus cases. In Ohio, Attorney General Dave Yost sent letters to three abortion clinics ordering them to stop performing “nonessential” surgical abortions that “can be delayed without undue risk to the current or future health of a patient.” In Texas, Gov. Greg Abbott ordered a halt to all procedures performed on patients not facing an immediate risk of “serious adverse medical consequences or death.” The Texas attorney general confirmed on Monday that most abortions would fall under the order.

 

Both officials have said the bans are necessary to reduce coronavirus-induced strain on health care systems and reserve personal protective equipment, including masks and gloves, for more urgent uses during a time of nationwide medical supply shortages. Their misclassification of abortion as nonessential health care betrays a deep-seated indifference for the health and welfare of pregnant women. Abortion care isn’t a delayable luxury, even during a pandemic. It’s essential preventive care—and if anything, it might be more essential than usual.

 

Abortion providers in Texas and Ohio have said they consider themselves exempt from the orders and will continue seeing patients, since the care they provide is necessary and time-sensitive. Though abortion care is extremely safe, it gets riskier, more expensive, and more difficult—or impossible—to access as a pregnancy progresses.

March 24, 2020 in Abortion, Constitutional, Healthcare, Reproductive Rights | Permalink | Comments (0)

Thursday, March 19, 2020

Exploring the Idea of a Common Law Right to an Abortion

Joanna Grossman, Women Are (Allegedly) People, Too, 114 Northwestern University Law Review Online 149 (2019)

Professor Anita Bernstein opens her book, The Common Law Inside the Female Body, with a startling “strange bedfellows” argument: William Blackstone and modern American feminists want the same thing. “The common law,” she argues “contains precepts and doctrines that strengthen the freedom of individuals; the feminist struggle against the subjugation of women pursues liberty.” Can this be the same Blackstone who articulated the doctrine of coverture and the severe impediments it imposed on the liberty of married women? His pronouncement that “the husband and wife are one person in law” — and that one is the husband — is the centerpiece of a doctrine that deprived married women of a panoply of civil rights like buying property, entering into contracts, and owning their own wages. These disabilities were lifted by statutes known as the “Married Women’s Property Acts,” but some impediments persisted into the twentieth century. But by the end of the book, Bernstein has made a compelling argument that common law principles, despite an inauspicious start, can “liberate women.” Indeed, there is little if anything in those principles that deprives women of the same rights as men. The common law may have “proceeded as if only men could enjoy its opportunities,” but that, she argues, is due to a “historical condition now supplanted.”

Once women became equal participants in civil society as well as in the justice system, there ceased to exist any basis for restricting the benefit of common-law principles to men. And, oh boy, the common law contains some juicy stuff that really could be deployed to advance the cause of gender equality. This Essay will consider and evaluate Bernstein’s argument that the common law supports a virtually unfettered right to terminate a pregnancy. It will situate her argument against the backdrop of the constitutional right of abortion, which has been the primary lens through which women’s reproductive rights have been viewed. The Essay will then consider the newly composed Supreme Court and the threat it portends to reproductive rights. It concludes by suggesting that the common law, as Bernstein understands it, could come to the rescue of women and their full humanity.

March 19, 2020 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Friday, February 28, 2020

Virginia Passes Law Easing Restriction on Abortion Rights

NYT, Virginia Lawmakers Pass Bills Easing Abortion Restrictions

 Abortion restrictions that were enacted when Republicans controlled Virginia’s General Assembly are being undone in legislation approved by the Democrats who are now in charge.

 

The House on Thursday gave final passage to a bill that would roll back provisions including a 24-hour waiting period before an abortion and a requirement that women seeking an abortion undergo an ultrasound and counseling. The measure would also undo the requirement that abortions be provided by a physician, allowing nurse practitioners to perform them, and do away with strict building code requirements on facilities where abortions are performed.

 

The Senate companion measure passed earlier in the week. The legislation now goes to Democratic Gov. Ralph Northam, who supports it.

 

“When this legislation goes into effect, Virginians will no longer have to navigate an obstacle course of delays and barriers in order to access a safe and legal abortion,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia.

 

The measures passed largely along party lines, with staunch opposition from Republicans and religious advocacy groups that testified against it in committee hearings.

 

Republican Del. Kathy Byron said in a floor speech Thursday that the changes would lead to women being less informed about “maybe one of the most important decisions that they ever make.”

 

“What we're doing today is we're voting to deny women complete information on what an abortion means, its consequences, its implications, its alternatives," she said.

With the Supreme Court Looming, Virginia Shores Up Abortion Rights

The law, passed Thursday in the House of Delegates, will repeal Virginia’s mandatory waiting period, which requires patients to wait 24 hours after a consultation to receive an abortion. It will allow certified nurse midwives and nurse practitioners to perform first-trimester abortion services and remove the requirement that providers give counseling to patients seeking abortions. It will also eliminate the requirement for an ultrasound before an abortion, a practice that can be traumatizing for patients. The American Medical Association says mandatory ultrasounds provide no “additional medically necessary information.” ***

 

“Those restrictions in the code were politically charged,” says Herring, “and it had nothing do with the provision of good care.” 

 

Democratic state lawmakers across the country have passed similar abortion protections in the past year, as attacks on abortion access have ramped up in conservative states. In 2019, nine states—Illinois, New York, Rhode Island, Vermont, Maine, California, Nevada, New Jersey, and Hawaii—passed legislation protecting or expanding the right to an abortion. Maine also voted to allow certified nurse midwives and nurse practitioners to provide non-surgical abortions. Four states codified Roe v. Wade by enshrining the right to an abortion in their state law.

 

Herring says she hopes Virginia will be the next state to codify the right to an abortion. She notes that there are a record number of women from both parties in the legislature. “When women are elected and in power,” she says, “there will be a tendency that we make sure that we are protecting our interests.” 

February 28, 2020 in Abortion, Conferences, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

New Book: Abortion and the Law in America--Roe v. Wade to the Present

Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge Univ. Press 2020)

With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.

February 28, 2020 in Abortion, Books, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Thursday, February 6, 2020

Book Symposium: The Common Law Inside the Female Body

Symposium Book Discussion: The Common Law Inside the Female Body by Anita Bernstein

Symposium Contributors: Bridget J. Crawford, David S. Cohen, Joanna L. Grossman, Cyra Akila Choudhury, Margaret Chon, Maritza I. Reyes, Teri A. McMurtry-Chubb, Anita Bernstein

The Common Law Inside the Female Body: In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.

February 6, 2020 in Abortion, Books, Gender, Theory | Permalink | Comments (0)

Wednesday, January 29, 2020

"Female Monthly Pills": The Coded Language of Abortion in Newspapers and the Law Before Roe

"Female Monthly Pills" and the Coded Language of Abortion Before Roe

Medication abortion is incredibly common in the United States; it’s also incredibly safe. And it’s because of this relative ease and safety, in fact, that conservative states are now targeting it in the same ways they have targeted providers and clinics in recent decades: In 18 states, a provider must be physically present to prescribe abortion medication, a barrier compounded by the fact that nearly 40 percent of women in the U.S. aged 15–44 live in a county without an abortion clinic. A number of states also have laws on the books that criminalize people who terminate their own pregnancies, and “there have been at least half a dozen U.S. cases where women have been arrested and charged after attempting to self-induce an abortion using illicitly obtained abortifacients,” according to the Guttmacher Institute.

It is now 47 years after Roe v. Wade, and we are still someplace we’ve already been. But that sense of familiarity goes back even further than the landmark abortion case: 200 years ago, as medicines and tonics meant to cause abortion were made more accessible through advertising, laws targeted their use as well.

Abortion has gone from being legal to illegal in this country before, and with Roe in jeopardy, advocates for reproductive freedom have forecast a future that looks much like our past, when pills were a major part of abortion access—and an obsessive target for abortion opponents.

The story of abortion regulation and criminalization in the U.S. begins, in some ways, with the sale of abortion pills. Such open business was part of the reason states pushed to pass the first laws governing abortion in the 1820s and 1830s, according to Lauren MacIvor Thompson, historian at Georgia State University and author of the forthcoming Battle for Birth Control: Mary Dennett, Margaret Sanger, and the Rivalry That Shaped a Movement. “But they were mostly only governing the advertising and sale of abortifacient drugs.” The laws were meant to regulate, not to outlaw, abortion, she told me in an email.

 ....

This didn’t quell the demand for abortion—which was not really the point. Neither did criminalization drive abortion fully underground. Into the 1860s and 1870s, New York readers could still learn, however euphemistically, of the alleged effects and availability of “Dr. Vlcaoli’s Italian Female Monthly Pills” or “Chichester’s English Pennyroyal Pills,” in big city and local papers alike, from the New York Evening Telegram to the Syracuse Daily Standard. People using titles like “Professor of Midwifery” or “Professor of Diseases of Women” offered “A Certain Cure,” “safe and healthy,” for “immediate removal of all special irregularities in females, with or without medicine, at one interview.”

H/T Kimberly Hamlin

January 29, 2020 in Abortion, Healthcare, Legal History, Reproductive Rights | Permalink | Comments (0)