Reproductive Rights Prof Blog

Mother Jones on the Rise of Medication Abortion Restrictions

Mother Jones: The New War on Abortion Drugs, by Mariah Blake: 

Can a state ban a type of abortion, entirely? That's the question the US Supreme Court is now weighing.

In June, the court agreed to hear a challenge to a 2011 Oklahoma law that bars doctors from prescribing abortion drugs, unless they follow the FDA label. Supporters of the bill argue the goal is to protect women's health. "Oklahoma has acted to regulate a dangerous off-label use of a drug regimen that is tied to the deaths of at least eight women," says Mailee Smith, a lawyer for Americans United for Life, which drafted the legislation. But critics maintain the language is so broad it would block access to all abortion drugs—including those used to treat life-threatening ectopic pregnancies. And the Oklahoma Supreme Court agrees. In response to a query from the US Supreme Court, on Tuesday the state court ruled that the bill effectively "bans all medication abortions" and thus is unconstitutional. . . .

Fifth Circuit's Excessive Deference to the State Renders the "Fundamental" Right to Abortion Meaningless

The difference between the trial court's opinion in Planned Parenthood v. Abbott -- permanently enjoining Texas's hospital admitting privileges requirement for abortion providers -- and that of the Fifth Circuit -- staying the trial court's injunction pending an expedited appeal -- boils down to burdens of proof.  U.S. District Judge Lee Yeakel required the state to show evidence that its admitting privileges requirement actually furthers women's health.  After a trial, he concluded the evidence showed that the requirement did absolutely nothing to protect women's health, and it would cause clinics across Texas to shut down.  He held that the law therefore lacked a rational basis, did not further a valid purpose, and had the effect of placing a substantial obstacle in the path of women seeking abortions. He was not alone in that view: four other courts have recently temporarily blocked admitting privileges requirements based on similar reasoning.   Judge Yeakel's approach is correct: when a law burdens fundamental constitutional rights, the state should be required to produce evidence that the law in fact furthers some valid governmental purpose. (More on that issue here.)

The Fifth Circuit panel, on the other hand, deferred to the state on every question of fact in determining that Judge Yeakel's opinion was likely to be overturned on appeal.  In reviewing the state's justification for the law, the panel applied the weakest possible form of rational basis review, a la FCC v. Beach Communications, requiring only that there be some "conceivable" justification for the law.  In applying the undue burden standard, the court found that there was no smoking gun purpose to burden women apparent on the face of the law (which it said was required for a facial challenge).  And as to effects, the court minimized the evidence of so many clinics shutting down and the burdens (or even absolute obstacles) this would impose on some women.  The court relied in part on the facial nature of the challenge for its effects ruling, essentially thumbing its nose at the Supreme Court's "large fraction" test in Casey and suggesting that it was bound instead by the Fifth Circuit's preference for applying the Salerno standard in abortion cases.  That test places plaintiffs in the exceedingly difficult position of proving that there is no set of circumstances under which the statute would be constitutional.  (More on the problems with this approach to facial challenges here.)

In granting the emergency stay, the court compared the relative harms that each side would suffer if the stay were or were not granted.  Now what, you may wonder, is the "irreparable harm" that the state of Texas will suffer if the status quo is maintained while this appeal is pending?  The panel found that "the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."  This, compared with the immediate elimination of abortion services in 24 counties in Texas.  Even for the Fifth Circuit, the callousness of this opinion is shocking.

The Fifth Circuit's opinion in Planned Parenthood v. Abbott is available here.

-CEB

Fifth Circuit Grants Texas Emergency Stay of Trial Court's Injunction: Onerous Admitting Privileges Law Will Go Into Effect, Eliminating Abortion Services At Many Clinics

CNN: Federal court reinstates key part of Texas abortion law, by Dana Ford:

A federal appeals court Thursday reinstated a key part of a new Texas abortion law, considered to be among the most restrictive in the country.

The decision came three days after a federal judge struck down the provision, which requires doctors to obtain admitting privileges at a hospital within 30 miles of the clinic at which they're providing abortion services. . . .

ACLU press release: Appeals Court Allows Unconstitutional Texas Abortion Restrictions to Take Effect While Legal Challenge Proceeds:

Providers Pledge to Continue to Fight for their Patients

AUSTIN - A federal appeals court ruled today that part of a Texas anti-abortion law that was struck down Monday by a district court will be allowed to take effect while legal challenges proceed. The provisions will cause at least one-third of the state's licensed health centers that currently provide abortion to stop offering the service immediately.

The law was initially challenged by more than a dozen women's health care providers represented by the American Civil Liberties Union, the ACLU of Texas, Planned Parenthood Federation of America, the Center for Reproductive Rights, and the law firm of George Brothers Kincaid & Horton. The district court ruled Monday that a provision that requires doctors to have admitting privileges at a local hospital is not rationally related to ensuring patient safety, and that the requirement would place a substantial obstacle in the path of women seeking abortion. Following the state's emergency request, the Fifth Circuit Court of Appeals ruled today that the provisions can take effect while the case moves forward.

"We will continue to fight to preserve access to abortion services in Texas," said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project. "This law is unconscionable. As the district court found, it does not further patient safety, and it will shut down many clinics across the state."

"The result of this ruling is not academic," said Terri Burke, executive director of the ACLU of Texas. "Women in many parts of the state will lose access to care they count on because clinics will close. If the State of Texas cares about women's health and safety, as it claims, it should take steps to reduce the need for abortion rather than closing clinics in already underserved parts of the state."

For more information on this case, please visit: www.aclu.org/reproductive-freedom/planned-parenthood-v-abbott

Oklahoma Supreme Court Answers SCOTUS's Certified Questions: Statute Bans All Medication Abortions

Center for Reproductive Rights press release: Oklahoma Supreme Court Confirms Unconstitutional State Law Acts as a Total Ban on All Medication Abortion:

Ruling is in response to request from U.S. Supreme Court

In answering certified questions from the U.S. Supreme Court, the Oklahoma Supreme Court has definitively ruled today that the state’s restrictions on medication abortion are unconstitutional because the law “restricts the long-respected medical discretion of physicians” and effectively bans medication abortions and the non-surgical treatment of women with ectopic pregnancies. . . .

SCOTUS blog: Oklahoma Abortion Law Explained, by Lyle Denniston:

The Oklahoma Supreme Court ruled today that a 2011 state law — now awaiting review by the Supreme Court — is so broad that it would outlaw all abortions done with medications, rather than surgery.  The state court was answering two questions sent to it by the Justices last June, when they agreed to hear a case defending the law’s constitutionality (Cline, et al., v. Oklahoma Coalition for Reproductive Justice, et al., docket 12-1094). . . .

Center for Reproductive Rights and ACLU on Texas Abortion Ruling

Center for Reproductive Rights: Court Decision Protects Abortion Access for Most Women in Texas, But Upholds Restrictions on Medication Abortion:

Ruling blocks provision that would have made safe, legal abortion non-existent for one in three Texas women

After a three day trial, a federal court today permanently struck down one provision of a recently enacted, deeply unpopular law—a measure that would have made safe and legal abortion services for one-third of women in Texas virtually impossible to access.

While U.S. District Court Judge Lee Yeakel blocked implementation of a requirement that all abortion providers obtain admitting privileges at a local hospital, today’s ruling has allowed another harmful measure to take effect on October 29—one that severely restricts the use of medication abortion, a safe and effective method to end an early pregnancy. . . .

ACLU Blog of Rights: Court to Texas: Abortion Law Serves No Valid Purpose, by Brigitte Amiri:

In a crucial victory for Texas women and families, a federal district court held unconstitutional a law requiring physicians who provide abortions to have admitting privileges at a local hospital.  The Texas court based its decision on evidence showing that the law would not protect women in any way, and would have a devastating effect on women in the state.  Indeed, the court expressly found that the law has “no rational relationship to improved patient care” and serves no “valid purpose.”  That is why leading medical experts, including the American College of Obstetricians and Gynecologists and the Texas Hospital Association, all opposed the law.

The importance of today’s ruling cannot be overstated. . . .

Federal Court Issues Mixed Ruling on Texas Abortion Law

The New York Times: Judge Blocks Part of Texas Abortion Law, by Erik Eckholm:

A federal judge in Texas on Monday blocked an important part of the state’s restrictive new abortion law, which would have required doctors performing the procedure to have admitting privileges at a nearby hospital. . . .

But the court upheld a second measure, requiring doctors to use a particular drug protocol in nonsurgical, medication-induced abortions that doctors called outdated and too restrictive. . . .

The Texas Tribune: Court Rules Abortion Restriction Unconstitutional, by Becca Aaronson: 

Less than 24 hours before new abortion regulations were set to take effect in Texas, U.S. District Judge Lee Yeakel blocked the implementation of two provisions challenged by abortion providers, ruling that they could place an undue burden on women and are therefore unconstitutional. 

In his opinion, Yeakel wrote that a provision of House Bill 2 that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion facility "places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.” . . .

Judge Lee Yeakel's decision can be found in full here.

Rolling Stone on Why Right-Wing Legislators and Businesses Want to Curb Access to Contraception

Rolling Stone: Why the Right Wing Is Targeting Birth Control Again, by Erika L. Sanchez:

What does birth control have to do with the congressional budget? Not much – unless you're a House Republican. In their latest effort to thwart Obamacare during the recent budget negotiations, several right-wing legislators attempted to tack a so-called "conscience clause" onto the law. The idea, which dates back several years, is to give employers who cite religious objections a way to block their employees from getting contraception covered by their health insurance.

Under the Affordable Care Act, preventative services, which include birth control, must be covered by health plans with no copayment, coinsurance or deductible. Even so, some top GOP leaders, most notably Rep. Paul Ryan (R-Wisconsin), are still demanding restrictions on contraception. As a result, many women's rights advocates are now on high alert. . . .

Federal Court Ruling Could Determine Fate of Abortion Clinics Across Texas

NPR: Clinics Close As Texas Abortion Fight Continues, by Kathy Lohr:

The fight over abortion in Texas is being played out in federal court, where abortion rights activists are challenging a new state law.

The measure bans abortions at 20 weeks, adds building requirements for clinics and places more rules on doctors who perform abortions. Some clinics have shut down, saying they can't comply with the law set to go into effect Oct. 29. . . .

Listen to the story here.

Supreme Court Could Address 20-Week "Fetal Pain" Abortion Bans

SCOTUSblog: Can states ban abortions at earlier stages?, by Lyle Denniston:

In a wave of new laws enacted across the country, foes of abortion are pushing a common goal:  to ban the termination of pregnancy at earlier stages than the Supreme Court has previously allowed.  The first new case seeking to test whether the Court will go along with that campaign has been filed, and could be faced by the Justices later this year.  A response to that case by abortion supporters is now due on November 29. . . .

Today is Intersex Awareness Day

In recognition of Intersex Awareness Day, I'm pleased to publish this commentary by Courtney Fraser, Fall Intern at Advocates for Informed Choice (’15, University of California, Berkeley School of Law): 

There’s no “I” in LGBT: How Reproductive Justice can (and must) end intersex invisibility

“Intersex? What’s that?” – so begins a series of questions I have become quite accustomed to fielding in my Civil Externship seminar. My classmates, some of whom are avid social justice advocates, are all familiar with reproductive rights; many of them even support LGBT causes, but few have ever heard the word “intersex” before. Most people probably haven’t. In honor of International Intersex Awareness Day, October 26, I’d say there’s no time like the present.

“Intersex” describes those who are born with ambiguous genitalia, or bodies that otherwise do not match societal ideas of “typical” male or female configurations. My externship this fall is with Advocates for Informed Choice, an (read: THE) organization working to protect the rights of intersex people. Right now, I have the honor of being involved with AIC’s groundbreaking litigation on behalf of a child (identified as M.C.) who suffered unnecessary genital surgery while he was still a baby. When I am called upon to explain my work to the class, invariably someone is shocked. That happens? All the time. To how many people? As many as 1 percent of live births are intersex, and 0.1 or 0.2 percent become victims of “normalizing” surgical mutilation.

So why aren’t more people outraged? Why do so few people even know about this?

 

Continue reading

Sixth Circuit Denies For-Profit Eden Foods' Right to Refuse To Comply with Contraceptive Mandate

RH Reality Check: Sixth Circuit Issues Strong Opinion Against For-Profit Religious Rights in Eden Foods Case, by Jessica Mason Pieklo:

. . .On Thursday, the Sixth Circuit Court of Appeals . . . in Eden Foods v. Sebelius . . . held the individual plaintiffs lacked standing to challenge the mandate and that the for-profit, secular corporate plaintiff was not a “person” under the Religious Freedom Restoration Act. Following its earlier decision in Autocam, the court affirmed the denial of a preliminary injunction that would have blocked the Obama administration from enforcing the mandate against Eden Foods and sent the case back to the lower court to be dismissed for a lack of jurisdiction. . . .

The opinion is available here.

Lawsuit Challenges Wisconsin Law Allowing Pregnant Women To Be Incarcerated For Conduct Deemed Risky to Their Fetuses

The New York Times: Case Explores Rights of Fetus Versus Mother, by Erik Eckholm:

Alicia Beltran cried with fear and disbelief when county sheriffs surrounded her home on July 18 and took her in handcuffs to a holding cell.

She was 14 weeks pregnant and thought she had done the right thing when, at a prenatal checkup, she described a pill addiction the previous year and said she had ended it on her own — something later verified by a urine test. But now an apparently skeptical doctor and a social worker accused her of endangering her unborn child because she had refused to accept their order to start on an anti-addiction drug. . . .

_____________________________________

(h/t David Nadvorney)

I found this quotation from one doctor especially chilling:  

“She exhibits lack of self-control and refuses the treatment we have offered her,” wrote Dr. Breckenridge, who, according to Ms. Beltran, had not personally met or examined her. [Dr. Breckenridge] recommended “a mandatory inpatient drug treatment program or incarceration" . . . .

This sounds like something out of The Yellow Wallpaper.

-CEB

"Stealth Attack" of New Abortion Restrictions, Illustrated Through Comics

The Huffington Post: Stealth Attack: What You Need to Know About the New Abortion Laws,  by Alicia Gay:

The ACLU has enlisted the help of comic artist Jen Sorensen to help illustrate (literally) the coordinated, national efforts that anti-abortion groups are waging across the country to outlaw women's health clinics and block access to abortion care. Jen uses sharp wit and humor to reveal the tactics our opponents are using to undermine our private and personal decisions.

Ultimately these attacks are no laughing matter. During the 2013 state legislative session over 300 anti-abortion restrictions were introduced. From motorcycle vaginas to claims that"women don't get pregnant that often from rape," we have seen some politicians and their political allies go to ridiculous lengths to push through anti-choice measures. These politicians MUST think we are stupid if they think we want politicians playing doctor.

Read and share the comic. Then stand with us to fight back! . . .

Call for Papers: Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review

Call for Papers: Intersections in Reproduction: Perspectives on Abortion, Assisted Reproductive Technologies, and Judicial Review:

Abortion and reproductive technologies have historically occupied separate realms in law, policy, and academia. In spite of some obvious and natural overlap, scholarship exploring the relationship between abortion and assisted reproduction is sparse. In 2014, Judith Daar (Whittier Law School) and Kimberly Mutcherson (Rutgers Law-Camden) will co-guest edit an issue of the Journal of Law, Medicine & Ethics devoted to articles reflecting on this relationship. JLME is a peer-reviewed journal published by the American Society of Law, Medicine & Ethics.

The guest editors are open to a wide range of scholarship from authors steeped in various aspects of reproductive justice, reproductive rights and reproductive technologies who can explore the future of assisted reproduction and abortion as matters of scholarly concern and legal regulation, especially when viewed as part of a larger movement for reproductive rights and reproductive justice. The term reproductive technologies should be interpreted broadly in this context to go beyond IVF and include a range of techniques used in conjunction with assisted methods of conception.

Continue reading

European Parliament Sends Abortion Rights Bill Back to Committee

The Malta Independent:  Abortion: MEPS Send Pro-Choice Bill Back to Committee:

Voting on a non-binding resolution calling for abortion to be made legal across the EU “as a human rights and public health” concern was postponed by MEPs this afternoon, with a majority voting to send it back to the European Parliament’s Women’s Rights and Gender Equality Committee.

The report, which was drafted by Portuguese Socialist MEP Edite Estrela, had fuelled intense lobbying from anti-abortion groups, particularly over the human rights argument and on its calls to ensure that conscientious objection to providing abortion should be monitored to ensure that it does not limit access to safe abortions. . . .

Fighting Back Against Abortion Stigma

ThinkProgress: Abortion Stigma Is Hurting Women, But Here’s How We Can Start Getting Rid Of It, by Tara Culp-Ressler:

Tuesday marks the beginning of the “1 in 3 Week of Action,” a grassroots effort to push back on the pervasive abortion stigma that continues to impact women’s experiences with their reproductive health. Despite the fact that abortion is a very common aspect of women’s health care, many people feel like they’re not allowed to talk openly about it — largely because they’ve internalized society’s shame-based message that having an abortion means they’ve done something wrong. The events held during the “1 in 3 Week” hope to change that. . . .

Federal Court Holds Trial in Case Challenging Texas Abortion Restrictions

ACLU press release: Federal Court Holds Trial on Texas Abortion Restrictions:

ACLU, Planned Parenthood, and Center for Reproductive Rights in Court to Block Law That Would Prevent Thousands of Women from Obtaining Abortion Care

AUSTIN, Texas – A federal district court today is holding a trial in a case filed last month against a state law that would prevent more than 22,000 women each year from obtaining safe and legal abortion care. The lawsuit was filed by the American Civil Liberties Union, the ACLU of Texas, Planned Parenthood Federation of America, and the Center for Reproductive Rights on behalf of more than a dozen women’s health care providers.

“If this law is allowed to take effect it will have a devastating effect on women throughout the state. In Texas and across the country politicians are trying to prevent women from accessing safe and legal abortion, and it must stop,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project.

The provisions being challenged in court today require abortion providers to unnecessarily obtain admitting privileges at a local hospital, and they severely restrict the use of medication abortion. The admitting privileges requirement could force at least one-third of the state’s licensed health centers that provide abortion to stop providing that service. No other medical professionals are required to have admitting privileges.

“This bill was intended from the start to limit women’s medical options rather than promote women’s health,” said Terri Burke, executive director of the ACLU of Texas. “The people of Texas opposed this law as a political tool that insulted the intelligence and undermined the well-being of women and their families, and the courts should make sure that the law is never allowed to take effect.”

For more information on this case, please visit: www.aclu.org/reproductive-freedom/planned-parenthood-v-abbott

Dallas News - Trailblazers blog: Court takes on state’s new sweeping abortion law, by Christy Hoppe:

Abortion providers sought to derail a new Texas law before it goes into effect next week, telling a federal court on Monday that it could harm women’s health by shuttering clinics and forcing women to take abortion pills in outmoded ways with greater risks.

“It turns back the clock two decades,” testified Dr. Paul Fine, chief medical officer for Planned Parenthood Gulf Coast.

But Texas Solicitor General Jonathan Mitchell said the law does not place undue burdens on abortion patients. And in a change from supporters who have always said the law is about protecting the health of women, Mitchell said that is only part of the equation. . . .

Judge Considers Request To Dismiss Stalking Order Against Wichita Abortion Protestor

The Wichita Eagle: Judge asked to dismiss stalking order against abortion protester:

A Sedgwick County judge said Tuesday he will decide in five to 10 days whether to dismiss a protection from stalking order against a Wichita pastor accused of harassing the director of a Wichita clinic that provides abortions. . . .

Abortion Remains Hot Topic in Virginia Governor's Race

NBC Washington: Va. Gov. Candidates Battle over Abortion:

In the Virginia governor's race, the perennial hot-button issue of abortion keeps creeping into the dialogue.

Each candidate portrays the other as an extremist, although on opposite ends of the spectrum, on an issue that could have an impact in a state where 54 percent of the approximately 4.8 million voters are women. Polls have shown Democrat Terry McAuliffe with a wide lead over Republican Attorney General Ken Cuccinelli among female voters. . . .

Review of Documentary "After Tiller"

SFGate: After Tiller' review: nuanced look at abortion, by David Lewis:

Documentary. Directed by Martha Shane and Lana Wilson. (Rated PG-13. 88 minutes.)

"After Tiller" doesn't take long to enter incendiary territory, as we see Dr. George Tiller's wrapped body being removed from a Wichita, Kan., church, where he was shot and killed in 2009 for performing third-trimester abortions at his clinic.

That could have easily been a documentary in itself, but filmmakers Martha Shane and Lana Wilson take the story in a more interesting - and thought-provoking - direction: profiling the only four doctors in the country who still openly offer the controversial third-trimester procedures (opposed by many on both sides of the abortion debate). . . .