Wednesday, March 9, 2016
Following last week's argument in Whole Woman’s Health v. Hellerstedt, commentators have focused on the impact of the women on the Court. One area where Justices Ginsburg, Sotomayor and Kagan made their presence felt was on the quality of the Court’s discussion of women’s health. Collectively, they (with significant help from Justice Breyer, and even some from Justice Kennedy) probably spent more time considering the health impacts of Texas HB2 than the entire Texas legislature did when it passed the law.
And it was appropriate that they did. Since it would be unconstitutional for Texas to pass a law with the purpose of preventing women from having abortions, the Texas Solicitor General had to argue that HB2 was enacted to protect women’s health. Petitioners have maintained that by delaying or preventing women’s access to abortion, the law actually increases the health risks that women face.
The challenged law imposes two requirements: (1) that doctors who perform abortions have admitting privileges at hospitals within 30 miles and (2) that facilities that provide abortions meet the requirements of an ambulatory surgical center (ASC). Collectively, the requirements will result in closure of three-quarters of Texas’s abortion clinics (About half of Texas’s 40 clinics closed when the admitting privileges requirement went into effect. The ASC requirement has been stayed).
The Texas SG tried to make broad, conclusory statements that the additional requirements would make abortion provision safer, but the Justices pushed back asking the SG why the requirements were necessary given the nature of abortion procedures – medical abortion just requires women to take two pills and early surgical abortion does not even involve general anesthesia - and the procedures’ extremely low complication rates.
Justices Sotomayor questioned the necessity of having a woman “travel 200 miles or pay for a hotel” to take 2 pills for a medical abortion in an ambulatory surgical center. When the Texas SG later tried to argue that the ASC requirement was necessary in case complications arose, Justice Ginsburg shut him down, noting that if complications arose from a medical abortion, they would happen several hours later after the woman returned home.
The Justices also took note that the risks associated with abortion are extremely low, less than 1% (the risks of a colonoscopy are 28 times greater) and did not justify the ASC or admitting privileges requirement. Justice Sotomayor pointed out that surgical abortion is essentially the same medical procedure as the treatment women receive following a miscarriage, but Texas has not imposed additional requirements for treatment of miscarriages. After Justice Ginsburg noted that early stage abortion is “among the most safe” and “least risk procedures” and that child birth is much riskier, the Texas SG made the mistake of trying to disagree with her. Justice Ginsburg shot back, “Is there really any dispute that childbirth is a much riskier procedure than early stage abortion.”
Several Justices also showed real concern about the law’s negative impact on women’s health. Justice Kennedy noted that the law appeared to be increasing surgical abortions as opposed to medical abortions in Texas, which “may not be medically wise.” Justice Sotomayor expressed concern that the lack of access to legal clinical care would bring us back to the time before Roe v. Wade, where women were forced to get abortions from unlicensed providers. And, Justice Breyer questioned Texas’s health purpose given evidence that lack of accessibility will increase self-induced abortions and the risk of “many more women dying.”
The Justices also emphasized the need to consider how the law affects access to care for all Texas women. Justices Kagan and Ginsburg pushed back on the Texas SG’s statement that the law would leave abortion facilities in metropolitan areas. Justice Kagan pointed out that in 2012 less than 100,000 women lived more than 150 miles from an abortion provider, and as a result of the law 900,000 women would live further than 150 miles from a provider and 750,000 further than 200 miles. Justice Ginsburg emphasized that in determining women’s access to abortion under Planned Parenthood v. Casey, “the focus must be on the ones who are burdened and not the ones who aren’t burdened.” Thus, the Court’s inquiry should not focus on the women who live in Austin or Dallas but “the women who have the problem who don’t live near a clinic.”
Many of the questions posed by Justices Ginsburg, Sotomayor, Kagan and Breyer revealed skepticism about Texas’ asserted health justification for the requirements. In responding to questions about availability of services, the Texas SG stated that women in West Texas could obtain abortions in New Mexico. Justice Ginsburg questioned how Texas could rely on women traveling to facilities in New Mexico, which does not impose admitting privileges or ASC requirements.
The Texas SG was repeatedly questioned about the lack of evidence of a need for the new restrictions and the fact that Texas did not act to impose similar requirements on much riskier procedures. He consistently responded that the Texas legislature can set much higher standards on facilities that provide abortion than facilities providing much riskier procedures. Then, Justice Kagan asked the question that was on everyone’s mind, “I just want to know why Texas would do that?”
Wednesday’s argument is a good indication that at least half of the Justices understand and take the impact of the Texas law on women’s health and access to abortion seriously. Hopefully, that understanding and respect for women’s health will be reflected in the Court’s decision.
Monday, February 29, 2016
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.
Thursday, January 28, 2016
The Kansas Appeals Court last week blocked a law that would have placed restrictions upon a woman's right to obtain an abortion. The decision was split, 7-7, which is determined to support the lower court decision, in this case an analysis that the Kansas state constitution protects a woman's right to abortion. The 2015 law in question would have outlawed the surgical procedure dilation and evacuation which is considered the most common and the safest abortion procedure for second trimester abortions.
The lower court judge analogized the Kansas constitution with the federal one, stating that both constitutions provide the same protections and that the law created an impermissible obstacle.
Then this week tables were turned on anti-choice activists who had demanded an investigation into Planned Parenthood. Houston prosecutors had been urged to investigate Planned Parenthood for what anti-choice advocates claimed to be the entities' illegal disposal of fetal tissue. Part of the evidence the advocates alleged implicated Planned Parenthood, were illegally made videos. Investigators said that the grand jury considered evidence for over two months. Rather than indict Planned Parenthood, the jury indicted the two advocates who engaged in the surreptitious film making. They were indicted on felony charges of tampering with a governmental record and misdemeanor related to purchasing organs.
Once again, Planned Parenthood is being proactive. The organization has sued abortion opponents claiming a three year criminal enterprise to target the organization. The advocates are alleged to have used illegal techniques in attempting to discredit Planned Parenthood.
The new, aggressive policy of suing opponents that harm, or attempt to harm, the organization is a responsible and effective tactic that seeks consequences to those who attempt to defame and dismantle Planned Parenthood.
Sunday, January 10, 2016
According to Arizona state legislators some minority women abort fetuses because of their race. In 2011, Arizona passed a law prohibiting an abortion provider from performing an abortion on a woman who wants to abort her fetus because of its race and/or sex. The American Civil Liberties Union (ACLU) sued Arizona arguing that this law violates the Equal Protection Clause of the U.S. Constitution, because it stigmatizes minority women by suggesting that they discriminate against their fetuses (assuming that it is even possible to do that).
But just a few weeks ago, the United States Court of Appeals for the Ninth Circuit denied the petitioners in the case, the National Association for the Advancement of Colored People (NAACP) and National Asian Pacific American Women's Forum (NAPAWF), their day in court. The Court rejected the appeal on standing even before getting to the constitutional issues, because the ACLU did not bring forth a woman who wanted to abort her fetus due to its race and/or sex. Perhaps because few (if any) such women exist.
It is true that the rate of abortion among African American women is five times higher than among Caucasian American women and for Latina women it is twice as high. Anti-abortion advocates argue that this occurs because abortion providers target minorities for abortion services in an attempt to reduce the number of people of color that are born. On the other hand, pro-choice advocates argue that the disproportionately higher rates are due to a lack of access to and failure to use contraception.
The logic of the Arizona race-selective ban is tortured because it is structured like its more popular cousin, the sex-selective abortion ban, which prohibits women from aborting their fetuses because of its sex. Sex-selective bans have been introduced in over half of the state legislatures in the United States and passed by eight states. On the other hand, Arizona is the only state in the United States that bans both race-selective and sex-selective abortion; eight other states and the United States Congress have considered and rejected race-selective abortion bans (although the majority of the U.S. House of Representatives voted in favor of both race-selective and sex-selective bans in 2012).
Proponents of sex-selective abortion bans argue that Asian Americans discriminate against the sex of their fetuses and this causes a disproportionate number of abortions of female fetuses. They further incorrectly argue that there are "missing women" in the United States. They then apply this logic to race to argue that race discrimination causes a disproportionate number of minority fetuses to be aborted.
However, the analogy falls apart when the actors with the purported racist and sexist intent are brought into the picture. In the case of sex-selective abortion bans, proponents argue that the sexist beliefs of Asian American parents cause them to obtain the abortions. To the extent sex-selective abortions are occurring in the United States, it would appropriate to argue that they occur because of a parent's desires for a child of a particular sex. On the other hand, it makes no sense to argue that women abort their fetuses because of a particular racial preference of their fetus. Yet, the Arizona law assumes that minority women abort their fetuses because they do not desire to have minority children.
The disproportionate rate of abortions among minority communities in the United States is an important concern that should be investigated, discussed, and solved. The Arizona law is not intended to do that. While it is unlikely that anyone will ever be prosecuted under the Arizona law, the statute itself is offensive. It also strains the patient-doctor relationship. By denying the appeal, the United States Court of Appeals for the Ninth Circuit has missed an opportunity to strike down state laws that use racial and gender equality as a ruse to restrict abortion rights.
Editor's Note: This piece originally appeared in The Huffington Post
Monday, January 4, 2016
Three Ohio legislators plan on filing a bill that would require women who miscarry or abort to cremate or bury the fetus. Significantly, the drafters made no attempt to appear gender neutral. They have placed the burden for cremation or burial exclusively on mothers. Misogyny undisguised. The legislators gave no thought to the trauma that women can experience when miscarriage occurs. Whether an abortion is spontaneous or planned, many women struggle with the often difficult decisions and emotions that surround both. Disregard toward women is exposed in this bill, as is the assumption that women alone are responsible for their pregnancies.
In what appears to be an unintended offense, the bill ignores the reality for many men, as well. Men often participate with their partners in decision making on whether or not to carry a pregnancy to term. Men also suffer when unwanted miscarriage occurs.
The legislators are not original, however, because Arkansas and Indiana have already passed similar laws. The legislators took up the cause once Attorney General Mike DeWine was proven wrong on his claims around Planned Parenthood's fetal donation program. Searching for a way to keep fetus disposal alive as a political issue, these legislators took up the cause in promoting the cremation or burial scheme. DeWine moved on to claims that Planned Parenthood is disposing of fetus in landfills. Planned Parenthood has had enough. The organization obtained an injunction against DeWine from taking any action to block its fetus disposal.
Perhaps these men are unable to see themselves as part of a global anti-female culture. The New York Times reported on the sexual and other violence against Syrian women refugees as they attempt to make a new life in another country. Women are victims of war in ways that men are not, notably because of the sexual violence they experience. Whether the abuse is sexual, physical or legislative, the ultimate impact, if not one goal, is to remove women's control over their bodies and their lives. It is all one.
Friday, December 11, 2015
Following up on Cindy Soohoo's post earlier this week, this post examines the ongoing denial of autonomy to women. The denial is promoted by the federal and state governments.
In yesterday's post, Prof. Soohoo mentioned a particularly brave abortion provider in Alabama. This past week, representatives of the Working Group on Discrimination Against Women in Law and Practice visited Birmingham. As reported by Amy Yurkanin, Committee members made the stop to explore abortion restriction, criminalization of drug use during pregnancy and restrictions on contraception.
The committee noted that women are denied access to reproductive choice not by directly outlawing abortion, but by making access so restrictive as to create virtual abortion bans. Yurkanin quoted Frances Raday of Israel saying "America looks as though it is joining the regional plague. They are doing it by making abortion not accessible instead of illegal." This term, the Supreme Court will address restrictions that lead to abortion clinic closures in the case of Whole Woman's Health v. Cole.
As Yurkanin further reported, "Lucia Hermo of the ACLU of Alabama described the laws that have been passed to restrict abortion, including one that would assign lawyers to the fetuses of pregnant teens seeking abortion without parental consent. That law is under review by a federal judge." While Alabama seems eager to appoint counsel for a fetus an underage teen seeks to have an abortion, should that child be born, the state will not provide counsel for either the child or the child's mother when protection from an abusive father is sought or when the child is in the middle of custody dispute.
The widely accepted substitution of the medically correct term "fetus" for "unborn child" has created the climate where state prosecutors manipulate laws designed to protect living children into tools of female prosecution. Both Tennessee and Alabama are enforcing their chemical endangerment of a child statutes by arresting and prosecuting women who use drugs during pregnancy. In Wisconsin, a similar law has been in effect since 1998, and is used in cases where pregnant women with a history of drug use are arrested and confined against their will. In a phrase that rejects treating all with dignity, those women are referred to as "cocaine moms." The enforcement against pregnant women discourages them from disclosing past drug use and seeking help for current addictions.
We have sanitized the discussion. Many hold sincere religious beliefs that are the source of their moral opposition to abortion. But those beliefs do not justify laws that result in disparate gender impact and does not excuse legislators who lack the courage to oppose legislation based in the promotion and imposition of those beliefs. Likewise, community religious beliefs do not eliminate the obligation of lawyers and judges to begin any analysis with the gender discriminatory impact of laws that purport to promote health. Reproductive rights restrictions and other legislation targeted toward women, and in particular mothers, are not gender neutral and must be redefined in the broader framework of the ongoing oppression of women. Any other rationale is a disguise.
Tuesday, December 8, 2015
Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics? Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood. Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr.
But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers. The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions. For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.
In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time. He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.”
Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women. A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).” She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.”
Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year. And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment. To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests. All to ensure that women are able to make their own reproductive health decisions.
The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights. In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . . health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”
Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas. The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”
For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders. Let’s change the dialogue and recognize them as the heroes they are.