Gender and the Law Prof Blog

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

Wednesday, January 13, 2021

In Another Shadow Docket Order, SCOTUS Stays Abortion In-Person Medication Requirement During COVID Found Unconstitutional by District Court

In another shadow docket ruling, the Supreme Court stayed a district court's preliminary injunction enjoining the unconstitutional application of a Covid abortion requirement that women seeking medicated abortions appear in person.

The order is here,  FDA v. American College of OB/GYNS (Jan. 12, 2021), with concurrence by Justice Roberts and dissent by Justice Sotomayor.

NYT, Supreme Court Revives Abortion Pill Restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

January 13, 2021 in Abortion, Constitutional, Healthcare, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, January 12, 2021

COVID, Abortion Restrictions, and Public Health in the Culture Wars

Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, 47 Mitchell Hamline L.Rev. (2020)  

At the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.

The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.

Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion.

January 12, 2021 in Abortion, Courts, Healthcare, Reproductive Rights | Permalink | Comments (0)

Thursday, November 19, 2020

Justice ACB on Griswold

NPR, Supreme Court's Abortion Cases Could Threaten Birth Control Too

But many people overlook other things that could flow from new U.S. jurisprudence on abortion — such as erasing the right to birth control that the court recognized in a 1965 case, Griswold v. Connecticut. During her confirmation hearings, Barrett specifically refused to say whether she felt Griswold was correctly decided.

That was a flashing red warning light for Nancy Northup, president of the Center for Reproductive Rights, a legal advocacy group that argues cases on abortion and contraception. Roe, Northup says, is part of a century of jurisprudence based on the idea that the U.S. Constitution protects the liberty of individuals.

"It began with cases about how one educates one's children," Northup says, and includes same-sex marriage, contraception and abortion. You can't just take Roe out and not unravel the whole fabric."

Yet from what Barrett has said and written about the Constitution, Northup says, "it's clear she doesn't believe it protects the right to personal liberty."

NPR, On Contraception Case, Amy Coney Barrett Again Avoids Question

The 7-2 decision in Griswold v. Connecticut is viewed as the basis for Roe v. Wade, the 1973 ruling that legalized a woman's right to abortion nationwide.

Instead of directly answering Coons' question about whether the Supreme Court made the appropriate ruling in Griswold, Barrett said she found it unlikely that decision would ever be overturned.

"It seems unthinkable that any legislature would pass such a law" taking away the right to buy or use contraception, she said. "I think the only reason that it's even worth asking that question is to lay a predicate for whether Roe was rightly decided."

"I think that Griswold is very, very, very, very, very, very unlikely to go anywhere," she added.

November 19, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, November 4, 2020

Abortion Rights on the Ballot: LA Passes Anti-Abortion Constitutional Amendment, CO Rejects 22 Week Ban on Abortion

Louisiana Just Passed an Amendment

Louisiana voters have just passed an amendment to the state constitution to clarify that nothing in it protects the right to abortion in the state. Given the current makeup of the courts, and, notably, a new anti-choice justice on the Supreme Court, it is a clear step toward preparing for Roe v. Wade to be overturned, which would make abortion access a state issue rather than a federal one. If that happens, Louisiana, it seems, wants to waste no time in banning it. 

As such, the following language will be added into Louisiana’s constitution: “To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Three states—Tennessee, Alabama, and West Virginia--have similar constitutional language.

NY Times Election Results: LA Ban (62% to 37%)

 

Colorado Proposition 115 Results: 22 Week Abortion Ban Rejected

The state remains one of seven with no gestational limits on abortion.

Colorado voters just rejected a measure that would have banned abortion in the state after 22 weeks’ gestation, according to the New York Times and the Associated Press.

The measure, Proposition 115, was backed by the anti-abortion group Due Date Too Late, which argued that abortions after 22 weeks were inhumane. But supporters of abortion rights were concerned about the impact of the measure on pregnant people, not just in Colorado, but around the country.

Abortions in the third trimester of pregnancy are rare, with nearly 99 percent of abortions happening before 22 weeks’ gestation. But a small percentage of patients seek abortion later in pregnancy, sometimes because of severe fetal abnormalities that can only be diagnosed at that time. Proposition 115 did not have an exception for such abnormalities, or for rape, incest, or the health of the pregnant person, allowing abortion only if it was “immediately required to save the life of a pregnant woman.”

Abortion-rights advocates nationwide were especially concerned about the measure because Colorado is one of just seven states in the country with no gestational limit on abortion. That means patients seeking later abortions in states with such limits often come to Colorado for care, sometimes traveling thousands of miles to do so.

NYT, NYT Election Results: Ban Late Term Abortions (59% to 40%)

 

See also Wash Post, Abortion is on the Ballot in Two States, Providing a Glimpse at a Post-Roe World

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

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court

 

November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)

Wednesday, October 21, 2020

The Geography of "Modest-Looking" Abortion Restrictions

Jessie Hill, The Geography of Abortion Rights, Georgetown L.J. (forthcoming 2021)  

Total or near-total abortion bans passed in recent years have garnered tremendous public attention. But another recent wave of more modest-looking abortion restrictions consists of laws regulating the geography of abortion provision through management of spaces, places, and borders. In the 1990s and early 2000s, numerous states adopted laws regulating the physical spaces where abortions can be performed. These laws include mandates that abortions be performed in particular kinds of places, such as ambulatory surgical centers, or that abortion-providing facilities have agreements in place with local hospitals. One consequence of such regulations has been to reduce the availability of abortion services within the geographical borders of a particular state and to require people to travel out of state in order to terminate a pregnancy. Other abortion controversies, too, have foregrounded the significance of state and even national borders, as in the cases of unaccompanied immigrant minors who sought abortions while in the custody of the U.S. Government. Thus, an entire subset of abortion restrictions intentionally targets the geography of abortion provision, inevitably impacts the geographical distribution of abortion services, or both. Yet, the geographical dimension of abortion restrictions has gone largely unappreciated in the legal literature. This Article thus aims to provide an overview of the geography of abortion regulation. It first considers the unique impact and attractiveness of spatial regulations, demonstrating that spatial regulations differ from other forms of abortion regulation in their tendency to exploit and aggravate preexisting social inequality in ways that make it appear natural or unavoidable. Second, this Article considers the jurisprudential implications of this “spatial turn” in three specific areas: the right to travel, private non-delegation doctrine, and the concept of viability in abortion doctrine

October 21, 2020 in Abortion, Legislation, Reproductive Rights | Permalink | Comments (0)

Wednesday, October 7, 2020

Book Review Reproductive Rights and Justice Stories

Leah Litman, Redefining Reproductive Rights and Justice, reviewing Reproductive Rights and Justice Stories (Melissa Murray, Katherine Shaw, & Reva Siegel, eds. 2019),  118 Mich. L. Rev. 1095 (2020).

Against this backdrop comes Melissa Murray, Katherine Shaw, and Reva Siegel’s edited collection of essays, Reproductive Rights and Justice Stories. The collection could not be timelier. Their volume contains a series of essays that “bring[] together important cases involving the state regulation of sex, childbearing, and parenting.” 

The two goals of the collection are to expand the contours of the field of reproductive rights and justice and to decenter the role of courts in that field. The editors’ pathbreaking volume cements a definition of reproductive rights and justice that is both more coherent and more nuanced than many earlier definitions, which often limited discussions of reproductive rights
and justice to contraception and abortion. The volume makes significant headway in illustrating the many different ways that law affects reproductive rights and justice.

Broadening readers’ understandings about what constitutes reproductive rights and justice has several benefits. It illuminates the many different ways that law and society construct and constrain what parenthood—and particularly motherhood—entails. Unpacking how law and society have made motherhood carry certain roles and expectations clarifies the stakes of
traditional reproductive rights and justice issues. For example, if becoming a parent, and in particular becoming a mother, entails assuming a particular identity, then the autonomy and liberty interests at stake in parentage decisions are much greater than just bodily autonomy.

The collection of essays also offers a lens through which to understand myriad legal issues. The volume makes clear that many different topics— ranging from workplace protections, to labor law, to disability law, to criminal procedure, to insurance law—implicate reproductive rights and justice in addition to decisions about whether to criminalize abortion or contraception. That has the salutary benefit of unearthing the complex web of laws and social conventions that influence parentage decisions. Understanding all of the influences on parentage decisions would also make it easier to construct a system that is supportive of families.

By broadening the definition of reproductive rights and justice to include the many different ways that law and society shape individuals’ decisions about whether to have children, the volume also pushes its readers to think about additional ways in which law and society influence decisions about sex and parentage.

 

October 7, 2020 in Abortion, Books, Family, Reproductive Rights | Permalink | Comments (0)

Friday, October 2, 2020

Making the Case for Accepting Judicial Defeat on Roe v. Wade

Joan Williams, The Case for Accepting Defeat on Roe

The argument that the left has already lost the abortion fight reflects the fact that there’s no abortion clinic in 90 percent of American counties. This is the result of the highly successful death-by-a-thousand-cuts anti-abortion strategy, which has piled on restriction after restriction to make abortion inaccessible to as many American women as possible.

Chief Justice John Roberts’s concurring opinion this summer in June Medical Services v. Russo — the one that mattered — was hailed as a surprise victory for abortion rights, but not by me. Justice Roberts refused to uphold Louisiana restrictions virtually identical to those the court struck down as unconstitutional just four years earlier, but clearly stated that his reluctance was because of his respect for precedent. Anyone with their eyes open could see the justice signaling to abortion opponents to continue the process of eroding Roe v. Wade’s nigh-absolute protection of access to abortion during the first trimester by inventing new types of restrictions, which they have been remarkably creative in doing.

If Judge Amy Coney Barrett becomes the next Supreme Court justice, Justice Roberts’s vote will be irrelevant, anyway. And if things already looked pretty grim, now they look much worse: Up to 21 states have passed laws banning or limiting abortions in ways that are currently unconstitutional. Many will go into effect immediately if Roe is fully overturned.

So what should we do now? Often forgotten is that R.B.G. herself had decided that Roe was a mistake. In 1992, she gave a lecture musing that the country might be better off if the Supreme Court had written a narrower decision and opened up a “dialogue” with state legislatures, which were trending “toward liberalization of abortion statutes” (to quote the Roe court). Roe “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue,” Justice Ginsburg argued. In the process, “a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

What Ginsburg called Roe’s “divisiveness” was instrumental in the rise of the American right, which was flailing until Phyllis Schlafly discovered the galvanizing force of opposition to abortion and the Equal Rights Amendment. Schlafly wrote the culture wars playbook that created the odd coupling of the country-club business elite with evangelicals and blue-collar whites. In exchange for business-friendly policies like tax cuts and deregulation, Republicans now allow these groups to control their agenda on religion and abortion. It’s hard to remember now but this was not inevitable: abortion was not always seen as the partisan issue it is todaynor did evangelicals uniformly oppose abortion.

Whether or not R.B.G.’s assessment of Roe was correct, the best tribute we can pay to her is to do what she suggests: open up the kind of dialogue that occurred in Ireland, where young people knocked on grannies’ doors and persuaded them to vote to legalize abortion, which — much to the distress of the Catholic Church — they did. (At the same time, activists galvanized to ensure that, in the absence of a referendum, women throughout the country would have access to and knowledge about medication abortions.)

I don’t want Roe to be overturned, but if that happens, it could bring political opportunity. The emotional heat that surrounds abortion as an issue manages to obscure that the attitudes driving opposition to abortion actually reveal some surprising common ground with progressives on economic issues.

October 2, 2020 in Abortion, Constitutional, Reproductive Rights | Permalink | Comments (0)

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)