Monday, June 29, 2020
SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?
SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?
(June 29, 2020)
By Cynthia Soohoo
The pro-choice community breathed a collective sigh of relief following the Supreme Court’s decision in June Medical v. Russo, striking down a Louisiana statute requiring that doctors who provide abortions have admitting privileges at hospitals within 30 miles of the procedure. The good news is that the Court did not overrule Roe v. Wade, the three remaining abortion clinics in Louisiana can remain open, and the people in the state can continue to access care.
However, although June Medical retains the undue burden standard, when read together, the six separate opinions authored by the justices once again muddy the waters about how courts should apply the undue burden standard and cast doubt on the “balancing test” the Court articulated just four years ago.
June Medical should not have been a difficult case. The Court struck down a virtually identical Texas admitting privilege law in Whole Woman’s Health v. Hellerstedt in 2016. The district court conducted lengthy proceedings and found that the law did not advance a state interest in protecting women’s health and would “result in drastic reduction in the number and geographic distribution of abortion providers.” Writing for a four justice plurality, Justice Breyer, who penned Whole Woman’s Health, applied the WWH’s standard in a workman like fashion and reaffirmed key aspects of the decision, including that the undue burden standard requires a court to weigh an abortion restriction’s asserted benefits against its burdens and that courts have an obligation to “independently review the legislative findings upon which an abortion-related statute rests.”
These two points resolved a disagreement among the lower courts about how to apply the undue burden standard to admitting privilege laws and other targeted regulations of abortion providers (TRAP laws). This was important because in recent years, churning out TRAP laws has become a cottage industry for anti-choice legislators who seek to regulate abortion clinics out of business through TRAP laws that make it difficult or impossible for clinics to stay open by imposing onerous and expensive requirements without actually making abortion provision safer.
In order to strike down the Louisiana law, Justice Breyer’s plurality decision needed a 5th vote that was supplied by Justice Roberts, but at a cost. Recognizing that June Medical was basically a re-do of Whole Woman’s Health and perhaps feeling pressure to maintain the Court’s legitimacy, Justice Roberts voted to strike down the law after engaging in a lengthy discussion about why stare decisis is important.
But in reaching his decision, Justice Roberts took pains to critique WWH’s balancing test and purported to apply a substantial obstacle test that does not balance a restriction’s benefits against its burdens instead. Specifically, his concurrence held that the admitting privilege law imposed a substantial obstacle “independent of its discussion of benefits,” but he went further characterizing the Whole Woman’s Health decision as making a similar finding, willfully ignoring that Whole Woman’s Health explicitly adopted a balancing test. Justice Roberts’ attempt to re-write the undue burden standard, led Justice Kavanaugh to declare that “five Members of the Court” – Justice Roberts and the 4 dissenting justices - “reject the Whole Woman’s Health cost benefit standard.” And, in a less politic and more direct manner, Justice Gorsuch’s dissent described the Chief Justice’s decision as a vote “to overrule Whole Woman’s Health insofar as it changed the Casey test.”
Given the strong factual record, the deference shown to trial court factual determinations, and the similarities between the Louisiana law and the law struck down in Whole Woman’s Health, Justice Roberts cast the 5th vote to strike down the Louisiana admitting privilege law. His vote preserves abortion access in Louisiana and the undue burden standard, but it does so in a manner that casts substantial doubt on the balancing test the Court adopted just 4 years ago, which may it more difficult to challenge other types of abortion restrictions in the future.
Thursday, June 18, 2020
Waiting for the Supreme Court’s decision in June Medical v. Russo? This is a great time to catch up on a number of outstanding films on reproductive rights and justice and engage in Q&A with filmmakers. Here are some of our picks:
Reversing Roe (2018) lays out the history of abortion activism in the United States leading up to Roe and Casey. The documentary examines the myriad challenges facing access to abortion today and the political forces that shape our current environment -- information that’s crucial to understanding what is at stake in June Medical. Watch the film on Netflix and on June 25 at 2:30 pm EDT, tune in to join a Facebook Live discussion with director Ricki Stern, Amanda Allen of the Lawyering Project and Farah Diaz-Tello of If/When/How.
Court challenges are not the only way to secure abortion access. On June 19, The 8th will be premiering at the HRW film festival. The film follows Irish activists who successfully led the 2018 campaign to repeal the 8th Amendment of the Irish Constitution that recognized the equal right to life of a pregnant person and an unborn fetus. The 8th is streaming online on June 19 at 5:20 PM ET, followed by a live Q&A with Irish activist Andrea Horan and filmmakers at 7 pm EDT.
Closer to home, Personhood, provides an in depth look at how the push to recognize fetal personhood threatens the lives and well-being of pregnant people and their families. Personhood is not currently available on public streaming services but has been screening for smaller audiences and at film festivals. Bei Bei, currently streaming on Vimeo, tells the story of one woman who was tragically impacted by fetal personhood laws, Bei Shuai, who was prosecuted for murder and attempted feticide following a suicide attempt while pregnant.
Finally, the Belly of the Beast follows the fight to hold the California Department of Corrections accountable for the forced sterilization of individuals incarcerated in California’s women’s prison system and provides an important history of the use of forced sterilization and Eugenics in the United States. Belly of the Beast premiered at the HRW film fest earlier this month and is available to stream until Saturday.
Have you watched these films and want to share your views? Do you have a favorite documentary on reproductive rights and justice topics? Feel free to share in comments!
Friday, June 5, 2020
(June 5, 2020)
Temple University's Center for Public Health Law Research and the Harvard Law and Policy Review are hosting a webinar on June 30, 12-1 pm ET entitled After June Medical Services: The Past, Present, and Future of Regulating Reproduction.
David Cohen, Drexel University School of Law
Michelle Goodwin, UC Irvine School of Law
Carol Sanger, Columbia Law School
Mary Ziegler, Florida State University College of Law
Moderator: Sarah McCammon NPR
Register at: bit.ly/JuneMedicalCPHLR
Contact Rachel Rebouche, firstname.lastname@example.org with any questions
Thursday, April 30, 2020
April 30, 2020
In response to the COVID-19 pandemic, If/When/How, Lawyering for Reproductive Justice accelerated the launch of a new tool to help young people, lawyers, advocates, and medical professionals navigate the maze of forced parental involvement laws in 37 states across the country.
The Judicial Bypass Wiki provides a one-stop site for state-by-state information on parental involvement requirements and the judicial bypass process for young people under the age of 18. It also offers community-sourced updates, local contacts, and best practices for accessing court services — vetted by the legal and policy experts at If/When/How.
“For a young person who’s seeking abortion and trying to navigate forced parental involvement laws, it’s like putting together the pieces of a puzzle,” said Jessica Goldberg, J.D., If/When/How Youth Access Counsel. “While there are a lot of good resources out there, they can often be hard to find and may not all appear in one place, or be linked to each other. The Judicial Bypass Wiki is a central hub of information that lifts up the work state advocates are doing to support young people, and helps connect young people to the resources they need.”
Tuesday, April 21, 2020
April 21, 2010, Jaime Todd-Gher and Payal Shah have published a new article in Sexual and Reproductive Health Matters, discussing why abortion is an essential health service during the COVID-19 pandemic.
Amidst states' evolving emergency responses, the authors make the case that abortion care must be included and ensured from the outset and access must be provided in bold, novel and evidence-based ways. The authors discuss states' human rights obligations which include a duty to ensure that individuals do not have to undertake unsafe abortions when faced with a pregnancy that is unwanted and/or threatens their life or health. These obligations are not waived in times of crisis; in fact, they become more pressing.
April 21, 2020
As states impose social distancing requirements and emergency measures to ensure adequate medical resources to combat COVID-19, several states are taking the opportunity to ban abortions. Yet anti-abortion protesters are continuing to gather at clinics harassing patients and providers in violation of stay-at-home orders with mixed responses from state officials and the courts.
In a press statement, Reverend Katherine Hancock Ragsdale, President of the National Abortion Federation has criticized these protests because "In many places, these protesters are able to walk right up to patients as they enter or exit the facility or surround them as they walk to and from their cars." While anti-abortion protests have long been part of the lives of abortion providers and patients, according the Ragsdale, their behavior "can feel particularly threatening to patents now that concerns about the coronavirus are heightened. We have even heard reports of protesters intentionally coughing on clinic escorts and making physical contact with patients and providers attempting to enter clinics."
Earlier this month, police in Charlotte, NC. were forced to disperse a crowd of 50 anti-abortion protesters outside of Charlotte's Preferred Women's Health Center and arrested 8 people for violating the governor's stay at home order. After the arrest, Senator Ted Cruz tweeted support for the protesters, asserting that the gathering was "fully consistent w/ public safety" and violated First Amendment Rights. Police have also arrested protesters outside of a clinic in Greensboro and issued a citation outside a Planned Parenthood in San Francisco.
In Michigan after citations were issued to protesters who gathered outside of Detroit clinics, violating the state's stay at home order, some of the protesters alleged that their protest was a religious gathering, and one protester sued, claiming that he was engaged in peaceful expressive activity and maintained a safe distance. The state agreed to dismiss the charges against him and the Governor's office issued guidance stating that under the state's stay at home order:
Persons may engage in expressive activity protected by the First Amendment within the State of Michigan, but must adhere to social distancing measures recommending by the Centers for Disease Control and Prevention, including remaining at least six feet from people outside the person's household.
While the guidance appears to balance First Amendment rights with responsible public health restrictions, enforcing the guidance may be more difficult in practice. In a letter to the governor, Reverend Ragsdale expressed concern that anti-abortion protesters have not been practicing social distancing and have been engaging in "large gatherings of protesters" outside of clinics and intentionally harass abortion patients and providers. "These protesters have used the guise of holding "worship services" to gather outside of clinics, needlessly increasing the risk of exposure to and transmission of COVID-19, both among each other and to health care providers and the patients they serve."
Monday, April 20, 2020
April 20, 2019
Today, the UN Working Group on Discrimination Against Women released a statement providing guidance on state human rights obligations to ensure women's human rights during the COVID-19 pandemic. In issuing the statement, Working Group Chair, Meskerem Geset Techane cautioned that “Measures to mitigate the risks to health and life posed by COVID-19 must consider the specific risks faced by women and girls, based on factors such as their sex, gender, age, disability, ethnic origin, and immigration or residence status among others.” Otherwise, many different forms of discrimination they already face would be exacerbated.
Among the factors that states should consider are: "The dramatic increase in women’s caregiving responsibilities, the rise in what was already an epidemic of sexual and domestic violence, the continued feminization of poverty, [and] the proliferation of barriers to healthcare, especially pregnancy-related healthcare." The statement noted that women are disproportionately impacted from social and economic shocks because of their disproportionate representation in "precarious, informal, poorly paid work, including domestic work."
The statement specifically warned against responses to COVID-19 that unnecessarily violate the reproductive rights and endanger the health of pregnant people , noting that in some countries:
the human rights of women are being violated during and after pregnancy and childbirth in an attempt to allegedly expedite the process or prevent contagion (e.g. cesarean sections and forceps delivery performed without medical indication, denial of epidural, prohibition of partner’s presence, and separation of newborns from mothers). Some governments are creating new barriers to access to abortion services, by deeming it a non-essential medical procedure.
Wednesday, March 25, 2020
March 24, 2020 (Rewire.News): State Officials Try to End Legal Abortion During COVID-19 Crisis, by Dennis Carter:
As the country struggles to ensure that there are adequate health facilities to care for coronavirus patients suffering from acute symptoms, states have begun to prohibit non-urgent procedures. Some states are trying to use these new restrictions to prohibit abortions.
Last week, Ohio's Attorney General wrote a letter to Ohio abortion clinics ordering them to cease "all non-essential and elective surgical abortions" pursuant to a health department order that "non-essential and elective" surgeries be cancelled. And on Monday, Texas's Attorney General stated that an Executive Order directing postponement of surgeries and procedures "not immediately necessary to correct a serious medical condition or to preserve the life of a patient who without immediate performance of the surgery or procedure would at risk of serious adverse medical consequences or death" included "any type of abortion that is not medically necessary to preserve the life and health of the mother."
While officials from Texas and Ohio claim that the restrictions are needed because of the increased demand for hospital beds and protective medical equipment, the restrictions run counter to the opinions of medical professionals. On March 18, the American College of Obstetricians and Gynecologists and other leading medical organizations issued a statement recommending that abortion be excluded from the list of procedures that could be postponed. The statement notes that most abortion care is delivered in outpatient settings. Indeed because most abortions occur at specialized abortion clinics, for the most part, cancelling abortions will not free up beds in hospitals or ambulatory surgical centers.
The ACOG statement goes on to say that "To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure." In addition to being an "essential component of comprehensive health care," abortion is also "a time-sensitive service" for which a delay of several weeks could render the procedure inaccessible.
The Texas and Ohio clinics have taken the position that all abortions are essential procedures and that they are taking all other required steps to reduce the use of personal protective medical equipment. For now these clinics remain open for patients.
Rewire.News is planning to provide updates on abortion access as states unveil their COVID-19 policies.
Thursday, March 5, 2020
June Medical Argument Focuses on Application of the Undue Burden Standard After Whole Woman’s Health
(March 5, 2020) By Cynthia Soohoo
Despite calls from conservative lawmakers to overturn Roe v. Wade, yesterday’s Supreme Court argument in June Medical Services v. Russo focused narrowly on how the Court should apply its 2016 holding in Whole Woman’s Health v. Hellerstedt rather than on whether the Court should overrule or overhaul the undue burden standard. And despite Louisiana’s last minute assertion that the physician plaintiffs lacked standing to bring the case, only Justice Alito seemed interested in taking on third party standing. All eyes were on Chief Justice Roberts and Justices Gorsuch and Kavanaugh, the two newest members of the Court. Gorsuch did not ask a single question. Both Roberts and Kavanaugh focused on how the Court should apply Whole Woman’s Health to future cases.
A few minutes into the argument, Justice Alito asked Julie Rikelman, counsel for June Medical, several questions on third-party standing. Louisiana’s Solicitor General Elizabeth Murrill also led off with third party standing, but the other justices did not substantively engage with the issue. Alito vehemently disagreed with Rikelman’s position that Louisiana waived the standing argument, but through questioning Justice Ginsburg underscored that if the Court were to consider standing at this point it would prejudice plaintiffs who might have added a non-doctor plaintiff if Louisiana had raised the issue sooner. Justice Breyer also expressed some frustration that the Court was being asked to consider standing, noting there have been at least 8 cases in which the Court has recognized third party standing going back over 40 years. He questioned when it was appropriate to reconsider established precedent, asking are we to “go back to Marbury v. Madison.”
The bulk of the argument focused on how Whole Woman’s Health’s holding (that a Texas law requiring doctors providing abortions to have admitting privileges at a hospital within 30 miles of the procedure constituted an undue burden on abortion) applied to other admitting privilege cases. In June Medical, the 5th Circuit reversed a district court decision holding that a virtually identical law imposed an undue burden. Justice Roberts asked counsel whether courts reviewing admitting privileges still needed to conduct a state by state factual inquiry into whether the laws constitute an undue burden after Whole Woman’s Health.
Rikelman maintained that when courts review an admitting privilege law, they should apply Whole Woman’s Health’s finding that such laws do not provide any health benefit. Then, turning to the other part of the undue burden test, courts should consider the burdens placed on abortion access on a case by case basis. She emphasized that in June Medical, the district court found that the law imposed significant burdens. Justice Kavanaugh seemed interested in how the benefits and the burdens should be weighed, posing a hypothetical about whether an admitting privilege law would be unconstitutional even if it did not impose any burdens on abortion provision.
Rikelman expressed some skepticism that an admitting privilege requirement would not impose any burden on abortion provision and noted that such a law was not before the Court. She emphasized that admitting privilege laws are always likely to pose an undue burden because they create barriers without any benefits.
In response to similar questions, Murrill argued that Whole Woman’s Health's reasoning would not be controlling on the benefit side of the undue burden test where the state can show a greater benefit based on its regulatory structure.
The rest of the argument focused on whether Louisiana could establish that its law imposed greater benefits or lesser burdens than the Texas law. Louisiana’s main argument on the benefit side was that the admitting privilege law serves a credentialing function. During this line of questioning, like 2016 Whole Woman’s Health argument, the female justices asked several questions reflecting a familiarity with abortion and reproductive health procedures that made it difficult for Murrill to make unsupported assertions about a health benefit. Ginsburg and Justice Sotomayor repeatedly noted that law’s 30 mile requirement made no sense if Louisiana’s purpose was to improve care for the treatment of complications from medical abortions. Ginsburg emphasized the low complication rate for abortion procedures and Louisiana’s failure to impose a similar requirement on doctors who perform DNCs to manage miscarriages. Justice Kagan stated that in Whole Woman’s Health, the Court held that an admitting privilege requirement could not serve a credentialing function if privileges are denied for reasons other than quality of care. She, Ginsburg and Sotomayor noted that admitting privileges are often denied based on factors, such as the number of admissions a doctor makes to a hospital, which reflect hospitals’ commercial interests rather than doctors’ competency.
On the burden side, Murrill and Principal Deputy Solicitor General Jeffrey Wall argued that the admitting privilege law did not cause the burden on abortion care because the doctors could have tried harder to get admitting privileges. Wall asserted that it was not in the plaintiff doctors’ interest to try hard to get privileges, and Murrill went further, suggesting that the doctors “sabotaged” their own applications. There was substantial back and forth between counsel and justices about what individual “John Doe” doctors could have done. Rikelman emphasized that many of the hospitals bylaws had provisions that disqualified the doctors because of insufficient hospital admissions, the doctors had applied to the hospitals where they had the best chance of being admitted, and the district court found that all but one of the doctors were unable to get privileges for reasons that had nothing to do with competency. Despite the disqualifying provisions and the district court’s findings, Wall took the position that the doctors should have applied to the full range of hospitals.
While Gorsuch’s silence makes it difficult to assess his views, questioning from the other justices (besides Alito) suggested that a majority of justices wished to focus on the very narrow question of how lower courts should apply Whole Woman’s Health to admitting privilege laws rather than to revisit the Court's abortion jurisprudence. Given the consistent onslaught of new and different types of laws restricting abortion each year such a narrow focus may be unsatisfying for those looking to the Court for more guidance, but it may be the most the Court is willing to do at this point.
Saturday, February 29, 2020
Mother Jones (Feb. 27, 2020): The Supreme Court Could Place an Impossible Burden on Women Fighting for Abortion Rights, by Becca Andrews and Jessica Washington:
Mother Jones reporters Becca Andrews and Jessica Washington describe the potential impact of Louisiana'a claim that doctors lack standing to challenge abortion regulations that will be considered by the Supreme Court in June Medical Services v. Russo next week. Since the 1976 case Singleton v. Wulff, the Supreme Court has allowed abortion providers to file lawsuits challenging abortion restrictions rather than forcing pregnant women to bring the suits on their own behalf. As a practical matter a decision that doctors lack standing would make it more difficult to quickly challenge unconstitutional legislation and impose great hardship on women who seek an abortion.
“It’s almost impossible to imagine that an individual patient…would divert the resources required to litigate the case away from the challenges of her own personal life, to vindicate the rights of other women in order to prevent the law from going into effect,” says TJ Tu, a lawyer representing June Medical, the Louisiana abortion provider, on behalf of the Center for Reproductive Rights.
While Roe v. Wade was brought by a pregnant woman, Norma McCorvey, the article suggests that it would be riskier for a woman to challenge an abortion restriction today given that the "inescapable gaze of the internet brings risks of harassment and doxxing." McCorvey herself was not able to benefit from the court's holding; she gave birth while the case was being litigated and was thrust into a harsh spotlight that she did not want, later becoming an anti-abortion crusader.
Attacking doctors' standing also helps support an anti-abortion message that doctors who provide abortions are not acting in their patients' best interests.
Mary Ziegler, a professor at Florida State University who studies the history of abortion law, explains that the approach calls into question the intentions of abortion providers. “The general argument is that abortion providers don’t have patients’ best interests in mind,” Ziegler says. “If the court accepts that argument, it will say a lot about the court’s willingness to buy arguments that abortion is bad for patients or bad for women.”
Oral argument in June Medical is scheduled for next Wednesday.
Friday, February 14, 2020
February 13, 2020
Temple's Public Health Law Research Center has published data on abortion laws in effect in the 50 states from December 1, 2018 to December 1, 2019. The interactive database provides information about 15 types of abortion laws including: abortion bans, TRAP regulations, insurance restrictions, refusal to provide abortions, abortion advertising and many other types of restrictions. In addition to statutes and regulations the data released also tracks court cases.
Some of the developments in 2019 captured in the database include:
- Five states enacted laws banning abortion based on gestational age, including a law in Alabama that bans virtually all abortions throughout pregnancy. Four have been challenged and blocked by courts. The Louisiana law will only take effect if a similar Mississippi ban, currently blocked, is allowed to take effect.
- Four states — Arkansas, Kentucky, Missouri, and Utah — enacted targeted “reason-based” bans that prohibit abortion based on the pregnant person’s reason for seeking an abortion. These reasons can include fetal disability or anomaly, Down syndrome, or the race or sex of the fetus.
- West Virginia passed a new law prohibiting the use of telemedicine for medication abortion, bringing the number of states with this restriction to nine.
- There were 37 court challenges to abortion bans in 2019 that violated constitutionally established reproductive rights.
The database was developed by the Policy Surveillance Program of the Center for Public Health Law Research in collaboration with the Guttmacher Institute, Resources for Abortion Delivery (RAD), American Civil Liberties Union (ACLU), Center for Reproductive Rights (CRR), National Abortion Federation (NAF), and Planned Parenthood Federation of America (PPFA). It is available on lawatlas.org.
Monday, February 10, 2020
Rebecca Cook and Joanna Erdman's co-authored article was recently published in a special issue of Best Practice & Research Clinical Obstetrics & Gynaecology. The abstract follows.
Joanna N. Erdman and Rebecca J. Cook, "Decriminalization of abortion – A human rights imperative," Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 11-24.
Decriminalization of abortion is the removal of abortion from the criminal law. This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.
Human rights require:
--- the withdrawal of punitive abortion measures,
--- access to abortion, at least on grounds of life, health, sexual crime, and fetal impairment,
--- timely access to information about the pregnancy and grounds for its possible termination, written reasons for denials, and review mechanisms for denials, and
--- that abortion services be available to all, irrespective of their specific circumstance.
Wednesday, February 5, 2020
February 5, 2020:
Over 150 organizations have issued a joint statement calling on Mike Pompeo to rescind a regulation that makes it tougher for pregnant people to visit the U.S. on tourist visas, which will predominantly impact travelers from Asia, Africa and Latin America. The Trump administration asserts that the regulations are aimed at cracking down on "birth tourism."
According to the Wall Street Journal:
The new rules direct consular officers in foreign embassies to deny tourist visas, known as B visas, to any pregnant woman they believe is looking to travel to the U.S. to give birth. It will be the responsibility of the pregnant woman to convince officers she wants to visit the U.S. for a primary reason other than to give birth.
Because the U.S.'s Visa Waiver Program enables most citizens from European countries and wealthy Asian countries (Japan, Singapore, South Korea and Taiwan) to enter the U.S. for 90 days without a visa, the National Asian Pacific American Women's Forum, the National Latina Institute for Reproductive Health and over 150 other organizations that work on immigration, reproductive health, rights and justice, workers' rights, civil liberties and human rights have criticized the regulations as "thinly veiled racist and xenophobic attacks on the health, dignity, and well-being of pregnant people in other, largely non-European countries and immigrant women of color and their families."
Another problem with the regulations is that they give consular officials significant discretion, and decisions are virtually non-reviewable. Officials can deny visas if "they have reason to believe [the individual] intends to travel for [the purpose of obtaining citizenship for the child]." The Wall Street Journal quoted a senior state department official who said that "[v]isual cues can be enough for an officer to ask questions about pregnancy," but officers "won’t use pregnancy tests."
The joint statement criticizes the regulations for opening the door to racial and gender profiling, body shaming" and "invasive and coercive questioning." Last month, a woman boarding a flight in Hong Kong to the U.S. island of Saipan was forced to take a pregnancy test before boarding the plane after she was told that the test was required for women "observed to have a body size or shape resembling a pregnant woman."
Because the rule constitutes a "substantial change in policy" without "any clear national security rationale," leading Democratic Senators have called for suspension of the rule until additional information is obtained. The letter notes that the State Department failed to provide support for its “unsubstantiated claims of so-called ‘birth tourism’ often advanced by nativist, restrictionist groups and provided no data corroborating the existence of a widespread problem or national security risk.” The letter also expressed concern that "Department officials were unable to explain how consular staff would implement this sensitive policy without discriminating against pregnant women, or impacting visitor visa applicants traveling to the United States for medical treatment."
Monday, January 20, 2020
Supreme Court Will Consider Trump Administration Rule Allowing Employers to Opt Out of Contraceptive Coverage
New York Times (Jan. 17, 2020): Supreme Court to Consider Limits on Contraceptive Coverage, by Adam Liptak:
Last Friday, the Supreme Court announced that it will hear two consolidated cases considering a Trump Administration rule that allows employer to opt out of the Affordable Care Act's contraceptive mandate based on religious or moral objections.
Last May, the Third Circuit blocked the regulations and issued a nationwide preliminary injunction.
The Trump Administration is arguing that the regulations are authorized by the ACA and required by the Religious Freedom Restoration Act. While the case presents interesting policy questions about whether and when employers can assert moral or religious objections in order to opt out of a statute of general application, the legal issues that the Court will consider are whether there was statutory authority under the ACA or RFRA to issue the regulations and whether the Administration complied with Administrative law requirements.
Friday, January 10, 2020
Amicus Brief filed by Members of Congress invites the Supreme Court to overrule Roe and Casey, what is really making the Court’s abortion precedent “unworkable”?
By Cynthia Soohoo (January 10, 2020)
Last week over 200 federal lawmakers filed an amicus brief inviting the Supreme Court to overrule its 1973 case Roe v. Wade, which recognized woman’s fundamental right to access abortion. The brief, signed by roughly 80% of Republicans in Congress and 2 Democratic House Members, takes the position that the “undue burden” standard that the Court applies to determine if abortion restrictions are constitutional is “unworkable” and so “vague and opaque” that the Court should not only reconsider the undue burden standard but the right to abortion itself.
The brief was filed in June Medical Services v. Gee which addresses the constitutionality of a Louisiana law requiring that doctors who perform abortions have admitting privileges at hospitals within 30 miles from where the procedure is performed and will be argued before the Court in early March. The brief’s extraordinary request is not surprising given that it was written by Americans United for Life, an anti-abortion public interest law firm that has led the fight to overturn Roe v. Wade since the 1970s. But the brief’s argument is ironic given strong evidence that to the degree that Roe and Casey can be deemed unworkable what has made it so is the staunch refusal of anti-choice activists to accept the decisions and the extreme politicization of abortion so that changes in the Supreme Court’s composition raise expectations that states and lower courts need not follow the law.
The refusal to accept Roe’s core holding, despite repeated reaffirmance by the Supreme Court, is illustrated by the claim made in the Legislators’ Brief that “Roe did not actually hold that abortion was a ‘fundamental’ constitutional right, but only implied it.” Not only have AUL and other anti-abortion groups refused to accept Roe, since the 1970s, they have consistently churned out model bills creating different types of abortion restrictions designed to undermine access to abortion and test the limits of Roe. After Casey allowed states to adopt pre-viability restrictions on abortion to protect women’s health as long as the restrictions do not impose an undue burden on abortion access, AUL encouraged states to pass new health regulations specifically targeting the provision of abortion. Known as TRAP laws, these laws do not prohibit abortions, but they impose regulatory requirements that make it difficult or impossible for the doctors who provide abortions to stay in business, raising the question of whether TRAP laws can create an unconstitutional undue burden.
This is the question that the 2016 case, Whole Woman’s Health v. Hellerstedt resolved. In doing so, the Supreme Court clarified that courts applying the undue burden standard should determine whether a challenged law advances the state’s purported interest and then balance the laws’ benefits with the burden it imposes on abortion access. After applying the standard, the Supreme Court held that an admitting privilege law that is virtually identical to the law challenged in June Medical Services was unconstitutional because the law provided no health benefit and imposed numerous obstacle in the path of a woman seeking an abortion.
Contrary to claims that the undue burden standard is “unworkable,” in 2016 and early 2017, courts had no problem applying the standard, especially in cases involving admitting privileges. After Whole Woman’s Health, the Supreme Court declined to hear cases challenging decisions striking down admitting privilege laws in Wisconsin and Mississippi. Alabama’s Attorney General dropped an appeal of an admitting privilege case, stating that “There is no good faith argument that Alabama’s law remains constitutional in light of the Supreme Court’s ruling.” Tennessee dropped a challenge to an admitting privileges law, and where states refused to drop cases, courts struck down admitting privilege laws.
But application of the undue burden standard and respect for Roe and Casey shifted when the Supreme Court’s composition changed. After Justice Kavanaugh joined the Court in late 2018, legislatures rushed to pass even more extreme laws that go to the heart of Roe’s core holding that a woman has a right to choose an abortion prior to fetal viability. These laws included a total abortion ban in Alabama and multiple state bans on abortion just a few weeks into pregnancy. Illustrating just how cavalier states became about complying with Supreme Court precedent, in 2019 Ohio passed a 6 week abortion ban despite the fact that an identical bill had been vetoed the year before by its former Governor John Kasich, an anti-choice Republican, because the law was unconstitutional.
Even though lower courts have struck down the extreme abortion bans laws, states have become more aggressive in continuing legal challenges, perhaps in hopes that the cases will work their way up to the reconstituted Supreme Court. This leads us back to June Medical Services and the argument in the Legislators’ Brief that the Supreme Court should reconsider its precedents because the undue burden standard has become unworkable. As recognized by dissenting Fifth Circuit Judge Patrick Higginbotham, who was part of the Fifth Circuit panel that heard June Medical Services below, the application of the undue burden standard after Whole Woman’s Health is “straightforward.” What is making it unworkable is the expectation that the newly constituted Roberts court will be open to the invitation to overturn Roe and Casey. Hopefully, the invitation will be declined.
Tuesday, December 3, 2019
(December 2, 2019):
Yesterday, 27 amicus briefs were filed with the Supreme Court in June Medical Services v. Gee . The case asks the Court to determine the constitutionality of a Louisiana law that requires doctors performing abortions to have admitting privileges in nearby hospitals. Although the Court found a similar provision unconstitutional in the 2016 case Whole Woman's Health v. Hellerstedt, the 5th Circuit upheld the Louisiana provision. June v. Gee will be the Court's first opportunity to decide an abortion case since Justice Gorsuch and Kavanaugh joined the Court.
The briefs were filed in support of June Medical's position that the law is unconstitutional and reflect a broad range of interests and perspectives. In addition to briefs filed by constitutional law experts, federal court scholars and the ABA, two briefs were filed on behalf of women who have had abortions. Other amici include: reproductive justice organizations and scholars, Civil Rights, Women's Rights and LGBTQ organizations, reproductive health organizations, medical professionals, social science organizations, members of Congress, former federal officials and 21 states and the District of Columbia. Catholics for Choice submitted a brief on behalf of religious organizations from a broad range of faiths. The case is scheduled for oral argument on March 4.
Saturday, November 23, 2019
Bustle (Nov. 13, 2019): SCOTUS Will Hear An Abortion Rights Case With Major Implications, by Jo Yurcaba:
The Supreme Court of the United States will hear the Louisiana abortion case June Medical Services v. Gee. The case was appealed from the 5th Circuit by June Medical and challenges a state law that will require abortion-providing clinics to have admitting privileges at a local hospital.
Louisiana, in the course of the appeal, also seeks the have the Court overturn "third-party standing" precedent. This long-standing rule allows clinics and providers to sue on behalf of their patients. Without such a rule, many pregnant persons would not choose to lose their anonymity by filing a case or else may not have the means to pursue comparable litigation in defense of their rights.
Anti-abortion activists and lawmakers hope to eliminate third-party standing as a way to keep challenges to abortion restrictions out of courts in the first place. Should the court strike down the validity of third-party standing, it may also call into question prior abortion precedent--including 1973's landmark Roe v. Wade--which was won without a direct patient-plaintiff.
Third-party standing was established just three years after Roe. Justice Blackmun at the time held that physicians have a unique ability to speak for their patients, stating that the physician is particularly qualified "to litigate the constitutionality of the State's interference with, or discrimination against" a person's abortion rights. Blackmun specifically acknowledged the gamut of challenges those facing abortions face. Experts cite, for example, that half of all women who get abortions are low-income and certainly cannot match the resources of their abortion providers in defending their rights.
Travis J. Tu, Senior Counsel for the Center for Reproductive Rights, is arguing the June Medical Services case before SCOTUS and says that overturning third-party standing could "take a wrecking ball to 40 years of abortion jurisprudence."
June Medical Services echoes a prior case SCOTUS decided in 2016: Whole Woman's Health v. Hellerstedt. Hellerstedt ruled that Texas' House Bill 2, which attempted to implement similar targeted regulations of abortion providers (TRAP), was unconstitutional and placed an undue burden on persons seeking abortion access.
Despite the 2016 decision in Hellerstedt, the 5th Circuit decided against precedent, upholding the Louisiana law.
Proponents of laws imposing admitting privileges generally justify them on the purported ground that they protect the health of pregnant persons seeking abortions. In reality, many hospitals will not grant admitting privileges, because they are not necessary.
TRAP regulations at their core are intended by anti-abortion activists to regulate abortions out of legal existence. Like the law at issue in June Medical, TRAP regulations generally require abortion providers to have admitting privileges at local hospitals, but they may also impose other requirements, including that abortions only be provided in certain, costly, far-more-complicated facilities than is reasonably necessary. The intended effect of TRAP laws is the same: severely limiting, if not outright abolishing, any clinics or providers who can legally offer abortions.
If the Louisiana law is upheld, June Medical Services will be the only remaining abortion-providing clinic in the state after two others are regulated out of existence. The eventual decision in June Medical will bring comparable consequences, whichever way it goes, for the many pending cases challenging similar abortion-restricting laws around the country.
November 23, 2019 in Abortion, Abortion Bans, Anti-Choice Movement, Current Affairs, In the Courts, Politics, State and Local News, State Legislatures, Supreme Court, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0)
Friday, November 22, 2019
Reprohealthlaw Blog Commentaries (Oct. 31, 2019): The Mexican Supreme Court's latest abortion ruling: In between formalities, a path to decriminalization, by Estefanía Vela Barba:
In Mexico's Supreme Court's latest abortion ruling, issued earlier this year, the justices of the First Chamber found that denying a woman access to abortion when her health may be at risk is unlawful, violating her right to health codified in the San Salvador Protocol and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The San Salvador Protocol is an additional protocol to the American Convention on Human Rights that expands on the original protections of economic, social, and cultural rights referenced in the American Convention. In General Comment No. 14, the Committee on Economic, Social and Cultural Rights interpreted Article 12 of the ICESCR to affirm the right to individual autonomy regarding one's own health decisions and the right to attain the highest standard of health.
The Mexican Court relied on these international instruments in tandem with their constitution to emphasize that the right to health includes the right to access the "full range of facilities, goods, services, and conditions" necessary to execute one's health decisions and attain the highest possible level of health.
The Court held that Mexico's General Health Law, which does not "explicitly contemplate access to abortion," must be interpreted in a way that is compatible with the internationally-codified right to health. The Court further understood that health holistically encompasses physical, mental, and social well-being "as defined by each individual." The decision, furthermore, referred to abortion as a "therapeutic intervention." The denial of such an intervention is a denial of a woman's right to health, the Court said.
The case is also important in that it had to overcome the procedural challenges of an amparo proceeding. An amparo proceeding is meant as a guarantee of an individual's Constitutional rights and can generally only be brought under particular circumstances once all means of appeal have been exhausted. Essentially, the purpose of amparo suits is "to stop or reverse an unjust ruling."
In Mexican case law, the amparo suits tend to be interpreted quite narrowly, limiting its availability in denial-of-abortion cases, since the resolution of the lawsuit nearly always takes significantly longer than the duration of a full-term pregnancy.
Here, the plaintiff had already successfully sought her abortion in Mexico City, and the district court in Mexico held that the suit should not reach the merits, because "the subject matter of the government action being challenged ceased to exist" once the plaintiff obtained her abortion.
The Mexican Supreme Court, though, on appeal, applied the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to find that it must adopt a more liberal interpretation of the bounds of this amparo suit in order to account for the disparate impact of the apparently "gender-neutral" provisions allowing for such lawsuits. The Court found that denying Jane Doe's case based on the procedural limitations of amparo alone would "hinder women's right to access justice in practically everything related to pregnancies, including their termination."
While the Court did not address the interplay with the Mexican Criminal Code and General Health Law as it related to abortion services and focused primarily on the implementation of the General Health Law, many abortion-rights activists consider this ruling a progressive step forward for the country.
Friday, November 15, 2019
New York Times (Nov. 15, 2019): Planned Parenthood Awarded More Than $2 Million in Lawsuit Over Secret Evidence, by Sabrina Tavernise:
On Friday, a jury in San Francisco found that the Center for Medical Progress (CMP) violated the federal Racketeer Influenced and Corrupt Organizations Act and awarded punitive and compensatory damages of $2.3 million. In 2015, the organization's leader David R. Daleiden and Sandra Merritt created a phony tissue procurement company and used false identities to meet with Planned Parenthood employees. Daleiden secretly taped the meetings and posted deceptively edited videos. The jury found CMP, Daleiden and Merritt committed fraud, trespass, and made illegal recordings and breached contractual confidentiality provisions. The jury found that Planned Parenthood was entitled to $469,361 in compensatory damages and $870,000 in punitive damages. Under RICO, compensatory damages are tripled.
Daleiden and Merritt argued that they were undercover journalists. However, the district judge in the case ruled that journalism is not a defense for the illegal acts of fraud, trespass and secret recording.
Thursday, November 14, 2019
Law.com (Nov. 8, 2019): Trump's DOJ Retreats From SCOTUS Fight Over Undocumented Teens, Abortion, by Marcia Coyle:
Earlier this week, the Trump Administration decided not to ask the Supreme Court to review an injunction blocking an Office of Refugee Resettlement (ORR) policy that prevented undocumented minors from having access to an abortion while in government custody. The Supreme Court had granted the Department of Justice two extensions of time to seek review, but in the end the DOJ did not file a petition by its Nov. 8 deadline.
The case, Azar v. Garza, gained attention during Justice Brett Kavanaugh's confirmation hearings because of a dissent he wrote from a D.C. Circuit decision upholding an order instructing the ORR to allow the named plaintiff in the case to obtain an abortion. If the Supreme Court had taken the case, Justice Kavanaugh would probably have recused himself.
In June, the D.C. Court of Appeals affirmed a lower court decision certifying a class of pregnant unaccompanied minors in government custody and issuing the preliminary injunction.