Reproductive Rights Prof Blog

Congressman Promotes Abortion Restrictions As Job Creation

Feministing: Running out of Ideas, Congressman Suggests Abortion Restrictions as Job Creation, by Veronica Bayetti Flores:

Remember HR7, that awful bill that would restrict federal insurance coverage of abortion and add sundry fun new restrictions on abortion coverage in DC and nationwide? Well, nobody knew this before, but it turns out it is also a job growth bill! Let Congressman Bob Goodlatte, creative outside-the-box thinker and Republican representative for Virginia’s 5th Congressional District, explain it to you . . . .

SCOTUSblog's Round-Up on Massachusetts Buffer Zone Case

SCOTUSblog: Thursday Round-Up, by Amy Howe:

[Wednesday] the Court heard oral arguments first in McCullen v. Coakley, the challenge to a Massachusetts law that creates a thirty-five-foot buffer zone around abortion clinics in that state.  Lyle covered the argument for this blog; I covered it in Plain English.  Other coverage comes from NPR’s Nina Totenberg, Jess Bravin of The Wall Street Journal, and Richard Wolf of USA Today.  In commentary on the case at Dorf on Law, Mike Dorf discusses the oral argument and, in particular, the challengers’ focus on the “fact that the Massachusetts law limits speech on public sidewalks”; at Slate, Emily Bazelon describes the odds as “more than good that the buffer zone in Massachusetts is on its way out.”  And also at Slate, Dahlia Lithwick cites the case, along with Susan B. Anthony List v. Driehaus (granted last week) and the Little Sisters of the Poor case, as examples of “all the fascinating new ways that as a nation, we may be as divided about how we talk about abortion and contraception, as we are about abortion and contraception themselves.”  At The Atlantic, Garrett Epps interprets the lack of questions from Chief Justice John Roberts as a sign that “his mind is made up and nothing either lawyer could say Wednesday was going to change it. If that’s the case, then the Massachusetts law is doomed.”  Writing at Education Week’s School Law blog, Mark Walsh looks at the role that school protest cases could play in McCullen.  Other commentary comes from Ruthann Robson at the Constitutional Law Prof Blog, who discusses the “definitional disagreements” at the argument yesterday, and from Ed Mannino at his eponymous blog.

Federal District Court Declares North Carolina Pre-Abortion Ultrasound Law Unconstitutional

JURIST: Federal judge rules North Carolina abortion ultrasound law is unconstitutional, by Bradley McAllister:

A judge for the US District Court for the Middle District of North Carolina[official website] on Friday ruled [opinion, PDF] that a North Carolina state law requiring women seeking an abortion to undergo an ultrasound procedure is unconstitutional because it violates the First Amendment rights [LII backgrounder] of physicians and patients. The lawsuit was brought by several North Carolina physicians and health care providers on behalf of themselves and their patients as a challenge to the constitutionality of a state law passed in 2011. The Woman's Right to Know Act [materials] required women to have an ultrasound administered and explained by a medical professional at least four hours before she would be permitted to undergo an abortion. Also, the law mandated that images of the ultrasound be displayed so the woman could view them and a medical professional must offer the woman the opportunity to hear the fetal heart tone. . . .

______________________________

If the Fourth Circuit affirms this ruling, there will be a Circuit split on the issue.  In January 2012, the Fifth Circuit ruled in Texas Medical Providers Performing Abortion Servs. v. Lakey that plaintiffs were unlikely to prevail in their First Amendment challenge to a similar law, vacating a preliminary injunction granted by the district court.  On remand, the district court granted summary judgment in favor of the state based on the Fifth Circuit's ruling.  The Supreme Court declined an opportunity to consider the constitutionality of pre-abortion ultrasound requirements when Oklahoma appealed a state supreme court ruling striking down its law.  An affirmance by the Fourth Circuit, paired with the Fifth Circuit's contrary ruling, may prompt the Court to take up the issue.

-CEB

An Argument in Favor of Buffer Zones for Reproductive Health-Care Clinics

RH Reality Check: Buffer Zones Are Critical to the Safety of Women and Health-Care Providers, by Vicki Saporta:

On Wednesday, the Supreme Court heard oral arguments in McCullen v. Coakley, a challenge to a Massachusetts buffer zone law that creates a safe space around reproductive health-care facilities. Buffer zones are critical to the continued safety of reproductive health-care patients and staff because they ensure a limited, yet essential, area for patients to access reproductive health care and for providers to access their workplace. . . .

Exemptions from Contraceptive Rule Threaten Rather than Protect Religious Freedom

The Washington Post (op-ed): Exemptions from the ‘contraception mandate’ threaten religious liberty, by Frederick Mark Gedicks:

Can my employer make me pay the cost of practicing his religion? In the coming months, the U.S. Supreme Court will decide two cases involving just this issue. The cases are about the Affordable Care Act’s “contraception mandate” — the law’s requirement that employer health plans cover Food and Drug Administration-approved contraceptives without out-of-pocket expense, including co-payments, co-insurance or deductibles. The employers in these two cases are among scores of profit-making businesses that are claiming a religious right under a federal statute to be excused from this requirement because the use of contraceptives violates their owners’ religious beliefs. . . .

Supreme Court Hears Arguments on Abortion Clinic Buffer Zone

Constitutional Law Prof Blog: Oral Argument in McCullen v. Coakley, the Clinic Buffer Zone Case, by Ruthann Robson:

The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute.  While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed. . . . 

Supreme Court Declines to Review Ninth Circuit Ruling Striking Down Arizona's 20-Week Ban

The New York Times: Supreme Court Won’t Hear Arizona Appeal on Abortion Ban, by Adam Liptak & Fernanda Santos:

The Supreme Court on Monday declined to hear an appeal from Arizona officials seeking to revive a state law that barred most abortions after 20 weeks of pregnancy. The justices offered no reasons for turning down the appeal, as is their custom. . . .

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This is good news.  The law clearly banned abortions before viability, directly challenging a major part of both the Roe and Casey frameworks.  As I stated in a recent New York Times article, "If they take the Arizona case, it seems like at least four of the justices are willing to reconsider the viability line as the point at which states can ban abortions."  Although one has to be careful about reading too much into a denial of cert., hopefully this indicates that Justice Kennedy is not ready to jettison the viaiblity line he reaffirmed in Casey.

-CEB

Caroline Corbin on Distortions in Abortion Jurisprudence

Caroline Mala Corbin (University of Miami Law School) has posted Abortion Distortions on SSRN.  Here is the abstract:

Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. 

The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.

Supreme Will Hear Arguments on Wednesday in Massachusetts Buffer Zone Case

The New York Times: Where Free Speech Collides With Abortion Rights, by Adam Liptak:

A couple of mornings a week, Eleanor McCullen stakes out a spot outside the Planned Parenthood clinic here and tries to persuade women on their way in to think twice before having an abortion.

But she has to watch her step. If she crosses a painted yellow semicircle outside the clinic’s entrance, she commits a crime under a 2007 Massachusetts law.

Early last Wednesday, bundled up against the 7-degree cold, Ms. McCullen said she found the line to be intimidating, frustrating and a violation of her First Amendment rights. The Supreme Court will hear arguments on Wednesday in her challenge to the law. . . .

Lyle Denniston on Little Sisters of the Poor

SCOTUS blog: Analysis: The Little Sisters case and EBSA Form 700, by Lyle Denniston:

Analysis

It seems like a bureaucratic thing to do, but gaining an understanding of what it means to sign government form EBSA 700 is the key to a historic religious controversy now before the Supreme Court in the Affordable Care Act case of Little Sisters of the Poor Home for the Aged v. Sebelius (docket 13A691).

Signing that form, the federal government argues, is a simple way for a religious organization like the Little Sisters to avoid what they regard as a sin:  providing  contraceptives and other pregnancy-related services to their female employees.  But signing, the Little Sisters counter, would be the very act of violating their faith by clearing the way for such services for those employees. . . . 

Announcement: Planned Parenthood Federation of America Seeks Two Staff Attorneys

Planned Parenthood Federation of America:

STAFF ATTORNEY, PUBLIC POLICY LITIGATION AND LAW, PLANNED PARENTHOOD FEDERATION OF AMERICA

The Public Policy Litigation and Law Department (PPL&L) of the Planned Parenthood Federation of America (PPFA) seeks two Staff Attorneys to join our team. These positions can be located in either our New York City or Washington, DC office.

PPL&L provides legal advice both to the national organization and to Planned Parenthood affiliates across the country on public policy issues that affect the mission of the organization. PPL&L also conducts and participates in high visibility litigation in state and federal courts throughout the country to advance the Planned Parenthood mission.

We seek attorneys with outstanding credentials who have 2 to 7 years of litigation experience, ideally involving questions of constitutional law. The successful candidates’ responsibilities will be commensurate with his/her experience.

Competitive public interest salary that is based on experience, plus comprehensive benefits. We are an equal opportunity employer and encourage applications from people of all backgrounds.

Interested applicants should send a resume and cover letter to litandlaw@ppfa.org. Please indicate whether you prefer the NYC office, DC office, or both. Applications will be accepted until the positions are filled.

Only a Matter of Time Before Supreme Court Tackles a Major Abortion Question

SCOTUS blog: SCOTUS For Law Students (sponsored by Bloomberg Law): Abortion's Time is Coming, by Stephen Wermiel:

Noticeably absent from the Supreme Court’s line-up of high-profile decisions in recent Terms is the issue of abortion.  Presumably it is just a matter of time.

When the Court decides to tackle a major abortion question and what the Justices ultimately say about the subject should be important to law students in a wide range of courses, from basic constitutional law to advanced civil liberties seminars to gender-based classes.  The status and scope of the right to abortion may hang in the balance. . . .

Texas Keeps Woman on Life Support, Against Her and Her Family's Wishes, to Incubate Her Fetus

DallasNews: Texas denies pregnant woman's grieving family the right to say goodbye, by Jacquielynn Floyd:

Marlise Munoz died the week after Thanksgiving.

Doctors believe she suffered a pulmonary embolism -- a blood clot to the lungs -- that cut off her oxygen. When her husband, Erick, found Marlise in their Tarrant County home, she wasn’t breathing and had no pulse.

She was gone.

If there is any mercy in the sudden loss of this happy young wife and mother, it’s that she doesn’t know she has since lingered in a hopeless twilight, her respiration artificially supported by machines.

She made it clear she didn’t want this. Her grieving husband and parents don’t want it either. But a not-very-well known statute under state law says Marlise, 33, doesn’t have the same right to a peaceful, natural death as other Texans because she is pregnant. . . .

DallasNews: Texas laws unclear in case of pregnant Fort Worth woman kept on life support, by Brittney Martin:

Conflicting Texas statutes are contributing to confusion about whether a hospital must keep a pregnant Tarrant County woman on life support against the wishes of her family. . . .

In Large Study, 98.4% of Women Who Viewed Ultrasound Images Still Chose Abortion

Slate - XX Factor blog: Does Looking at the Ultrasound Before an Abortion Change Women's Minds?, by Katy Waldman:

The journal Obstetrics & Gynecology published an important study this month: the deepest inquiry yet into whether viewing ultrasound images can influence a woman’s decision to have an abortion. . . . 

Researchers analyzed 15,575 medical records from an urban abortion care provider in Los Angeles. . . . 

Fifth Circuit Hears Arguments on Texas Abortion Restrictions

CBS: Texas abortion law gets federal appeals court review:

A federal appeals court heard arguments Monday on whether the state of Texas can enforce a law that led to the closing of several abortion clinics, a case that ultimately appears bound for the U.S. Supreme Court.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans didn't indicate how soon it would rule on whether a district judge erred in declaring parts of the 2013 law unconstitutional. . . .

In November, the groups challenging the new provisions asked the U.S. Supreme Court to overturn the 5th Circuit's stay of Yeakel's ruling. The high court rejected the request in a 5-4 opinion. Justice Stephen Breyer wrote in the minority opinion that he believes at least four justices will vote to hear the case no matter how the 5th Circuit ultimate rules. . . .

More on Legislative and Litigation Outlook for Abortion in 2014

Politico: Shifting strategies for state abortion battles in 2014, by Natalie Villacorta:

Conservative states that ran into legal trouble passing some of the most restrictive abortion laws in the nation last year have shifted their approach for 2014: smaller instead of sweeping.

Rather than bans that directly challenge Roe v. Wade, many states are again going for more incremental measures that address the physical space requirements of clinics, physicians’ qualifications and the use of certain procedures. The move is hardly a retreat, abortion opponents say, but rather a strategic decision that they expect could be nearly as effective in less time. . . .

Texas may continue to be a key test case in 2014. About a dozen clinics have shut since a law took effect there in October requiring abortion providers to have admitting privileges at a hospital within 30 miles. . . .

The 5th Circuit heard the case Monday, and it’s likely to uphold the statute, said law professor Caitlin Borgmann of City University of New York. Borgmann, who has worked extensively on reproductive rights, expects the case ultimately to go before the Supreme Court. . . .

Call for Submissions: Sarah Weddington Prize for Student Scholarship in Reproductive Rights

Law Students for Reproductive Justice announcement:

Law Students for Reproductive Justice (LSRJ) in collaboration with the Center for Reproductive Rights, is pleased to announce the Call for Submission for the ninth annual Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights. 

This year, the Sarah Wedding prize will have no specific theme, but will be open to fresh student scholarship exploring a wide range of issues that affect reproductive health, rights, and justice in the U.S. For more information, please download the 2014 Call for Submissions.

The deadline for submission is January 15, 2014.

Winning authors will receive cash prizes: $750 (1st place), $500 (2nd place), or $250 (3rd place). The first place winner will also have a chance at publication with the NYU Review of Law and Social Change

Outlook for Abortion Legislation and Litigation in 2014

The New York Times: Access to Abortion Falling as States Pass Restrictions, by Erik Eckholm:

A three-year surge in anti-abortion measures in more than half the states has altered the landscape for abortion access, with supporters and opponents agreeing that the new restrictions are shutting some clinics, threatening others and making it far more difficult in many regions to obtain the procedure.

Advocates for both sides are preparing for new political campaigns and court battles that could redefine the constitutional limits for curbing the right to abortion set by the 1973 Roe v. Wade decision and later modifications by the Supreme Court.

. . . A partial test is expected this month, when the Supreme Court announces whether it will hear Arizona’s appeal to reinstate its 20-week ban, which was overturned by federal courts. . . .

“If they take the Arizona case, it seems like at least four of the justices are willing to reconsider the viability line as the point at which states can ban abortions,” said Caitlin Borgmann, an expert on reproductive rights at the City University of New York School of Law. . . .

More Abortion Restrictions Enacted in Last 3 Years Than in Entire Previous Decade

Guttmacher Institute: Laws Affecting Reproductive Health and Rights: 2013 State Policy Review:

Reproductive health and rights were once again the subject of extensive debate in state capitols in 2013. Over the course of the year, 39 states enacted 141 provisions related to reproductive health and rights. Half of these new provisions, 70 in 22 states, sought to restrict access to abortion services. In sharp contrast to this barrage of abortion restrictions, a handful of states adopted measures designed to expand access to reproductive health services. Most notably, California enacted the first new state law in more than seven years designed to expand access to abortion, and five states adopted measures to expand access to comprehensive sex education, facilitate access to emergency contraception for women who have been sexually assaulted and enable patients’ partners to obtain STI treatment. 

Abortion

Twenty-two states enacted 70 abortion restrictions during 2013. This makes 2013 second only to 2011 in the number of new abortion restrictions enacted in a single year. To put recent trends in even sharper relief, 205 abortion restrictions were enacted over the past three years (2011–2013), but just 189 were enacted during the entire previous decade (2001–2010). . . .

In Texas, Abortion Clinics Close But Anti-Choice "Pregnancy Medical Clinics" Thrive

Aljazeera America: Anti-Abortion Pregancy Clinics Thrive in Texas as Real Clinics Close, by Carolyn Jones:

Betsy Garcia hovers nervously outside an abortion clinic in McAllen, Texas. After accepting a pamphlet from someone on the street, she goes to a different building where a woman in a white coat greets her with warmth. The woman offers to show Betsy a graphic video about abortion, then the two pray in front of a crucifix before the teen exposes her belly for an ultrasound. "God is going to bless you in a tremendous way with this child," says the woman as she presses a rosary into the girl's hands. The final scene shows a radiant Betsy dandling her 6-month-old daughter on her lap. . . .