Reproductive Rights Prof Blog

Anti-Choice Movement's Tactics Don't Include Persuading Women

The Guardian: Welcome to the beginning of the end of the anti-abortion movement, by Jessica Valenti:

Trying to block women’s access to abortion is a last-resort option for a stuck movement – and a weak spot that pro-choicers should hammer on

The anti-choice movement has worked hard to convince people that it cares about women and what they want. Its (public) rhetoric went from calling women murderers to telling them they “deserve better” than abortion. The movement swears its protestors are kindly grandmothers, not terrifying bullies. It has even started calling itself a group full of feminists!

But no amount of re-branding can hide the true goal of the anti-choicers: forcing women to carry pregnancies they don’t want, by any means. And the truth is that trying to forcibly stop women from getting abortions is a last-resort option for a stuck movement. . . .

The Importance of Contraception to Women's Equality

Cornerstone:  Contraception: A Prescription for Women's Equality, by Kara Loewentheil:

One of the few mercies of the Supreme Court's opinion in Burwell v. Hobby Lobby Inc. last month was its acceptance of the Government's argument that access to contraception is indeed a compelling governmental interest (see pages 39-40 of the majority opinion). Justice Kennedy's concurrence (see pages 2-3), in particular, stressed that this vote for the majority's holding hinged on his belief that the government could achieve its compelling interest in a different manner without burdening the rights of the women whose contraceptive access would be affected. But we should not be too sanguine about this aspect of the holding, because it too is under attack. . . .

Linda Greenhouse on Judge Thompson's Decision Invalidating Alabama's Admitting Privileges Law

The New York Times (opinion column):  A Right Like Any Other, by Linda Greenhouse:

New Judicial Approaches to Abortion Rights

Listening to politicians talk about abortion, watching state legislatures put up ever more daunting obstacles, reading the opinions of judges who give the states a free pass, it’s abundantly clear to me that some constitutional rights are more equal than others. Or to put it another way, there are constitutional rights and then there is abortion — a right, increasingly, in name only, treated as something separate and apart, vulnerable in its isolation from the mainstream of those rights the Constitution actually protects.

And then, forcefully to the contrary, came this week’s opinion by a federal district judge in Alabama, Myron H. Thompson, who declared unconstitutional the state’s Women’s Health and Safety Act, which required doctors who performed abortions to have admitting privileges at a nearby hospital. . . .

Justice Ginsburg Frustrated by Court's Failure To Advance Women's Rights

The New York Times:  Justices’ Rulings Advance Gays; Women Less So, by Adam Liptak:

When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.

In its gay rights rulings, she told a law school audience last week, the court uses the soaring language of “equal dignity” and has endorsed the fundamental values of “liberty and equality.” Indeed, a court that just three decades ago allowed criminal prosecutions for gay sex now speaks with sympathy for gay families and seems on the cusp of embracing a constitutional right to same-sex marriage.

But in cases involving gender, she said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality. . . .

Radical Feminists and Transgender Rights

The New Yorker: What is a Woman?, by Michelle Goldberg:

The dispute between radical feminism and transgenderism.

O May 24th, a few dozen people gathered in a conference room at the Central Library, a century-old Georgian Revival building in downtown Portland, Oregon, for an event called Radfems Respond. The conference had been convened by a group that wanted to defend two positions that have made radical feminism anathema to much of the left. First, the organizers hoped to refute charges that the desire to ban prostitution implies hostility toward prostitutes. Then they were going to try to explain why, at a time when transgender rights are ascendant, radical feminists insist on regarding transgender women as men, who should not be allowed to use women’s facilities, such as public rest rooms, or to participate in events organized exclusively for women. . . .

Texas Abortion Providers Are Back in Court to Fight Restrictions That Could Shut Down Yet More Clinics

The New York Times:  Abortion Providers in Texas Press Judge to Block Portions of New Law, by Manny Fernandez & Erik Eckholm:

Owners of Texas abortion clinics asked a federal judge on Monday to block enforcement of stringent new building and equipment standards, set to take effect on Sept. 1, that they say could force more than half the state’s remaining abortion clinics to shut down, leaving fewer than 10 across a sprawling state.

The clinic owners pressed their case and state officials defended the new requirements, included in a sweeping anti-abortion law that passed last year, on the opening day of what is expected to be a four-day trial here. . . .

Jonathan Will on Fifth Circuit Decision Enjoining Mississippi's Admitting Privileges Law

Bill of Health (Harvard Law School Petrie-Flom Center):  MS Admitting Privilege Law Struck Down by 5th Circuit, by Jonathan Will:

On July 29, 2014 a panel of the 5th Circuit struck down a Mississippi statute that would have effectively closed the only remaining abortion clinic in the state. Just four months ago a different panel of the 5th Circuit upheld a nearly identical statute enacted in Texas. Both statutes require physicians performing abortions to have admitting privileges in local hospitals.

The differing results are unremarkable because both the purpose and effects prongs ofCasey’s undue burden analysis are necessarily fact driven. But there are some open questions worth highlighting from the decisions. The Mississippi law raises a matter of first impression. Namely, of what relevance is it, if any, that Mississippi women would have to cross state lines to obtain an abortion if the law was upheld? After all, even if the last abortion clinic closed, Mississippi women would have a shorter distance to travel to obtain such services than some Texas women now have because of the other 5th Circuit decision.

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Analysis: Judge Myron Thompson's Opinion on Alabama Law Employs a Fresh and Useful Template for Applying the Undue Burden Standard

Today, U.S. District Judge Myron Thompson issued a decision – following a 10-day bench trial – declaring unconstitutional Alabama's admitting privileges requirement for abortion providers.  The decision is remarkable in at least two respects.  First, Judge Thompson employs a brilliant interpretation of Planned Parenthood v. Casey that is different from any lower court opinion I have seen and yet that is well-grounded in the decision.  (He had already laid out this framework in an earlier ruling on summary judgment.)  It resolves a longstanding puzzle about the undue burden standard, namely whether and how a court should factor in the state's burden of justification for an abortion restriction when it conducts an undue burden analysis.  Judge Thompson focuses in on a little-noticed aspect of Casey, namely its reliance on ballot-access case law.  The Casey joint opinion analogizes to the states’ “substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote,” in order to explain why “not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.”  Yet, in describing the state’s power to regulate elections as “similar” to its power to regulate abortion, the Court suggests that its analysis in the ballot access cases is instructive in the abortion context. 

Judge Thompson takes up this suggestion.  He points out that, in the specific cases that the Casey joint opinion cites, the Court looked at whether the state’s interest in the election regulation was “sufficiently weighty” to justify the restriction it imposed.  In Anderson v. Celebrezze, for example, the Court explained that, when analyzing constitutional challenges to specific provisions of a state's election laws, the Court

must first consider the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Judge Thompson applies this framework, first analyzing the burden that Alabama’s admitting privileges requirement would impose on abortion access in the state.  Finding that the burden would be substantial, he then closely examines the state’s purported justifications for the law and concludes that they are “exceedingly weak.” 

Planned Parenthood v. Casey holds that a law is unconstitutional if it has either the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” But the “purpose prong” of this test has been under-utilized, particularly after the Supreme Court’s 1997 per curiam decision in Mazurek v. Armstrong.  Given the brazenness of recent state attempts to eliminate abortion access under the guise of protecting women’s health, courts have shown renewed interest in examining the justifications for these laws.  I have argued, as have others, that such examination of the states’ purposes is critical.  Judge Thompson’s opinion offers a logical path for courts to do this, following a model that Casey itself endorses.

The second remarkable aspect of Judge Thompson’s opinion is his keen awareness of and compassion for what it is like to be an abortion provider amid a climate of hostility, violence, and professional risks and hurdles.  Judge Thompson opens his factual background section with this discussion, remarking, “[T]his court cannot overlook the backdrop to this case: a history of severe violence against abortion providers in Alabama and the surrounding region.”  These facts are relevant to the court’s conclusion that the admitting privileges requirement would heavily limit abortion access.  Were the law to take effect and thereby eliminate abortion services in Mobile, Birmingham, and Montgomery – as the judge concludes it would – there are “very good reasons to expect that no one would step in to provide abortion services.”

Judge Thompson’s approach to evaluating admitting privileges laws – and other abortion restrictions – under the undue burden standard makes sense, relies on an established framework for balancing a state’s justification for a law with that law’s burden on certain constitutional rights, and is well-supported by the Casey opinion.  It should provide a useful template for courts evaluating the latest wave of abortion regulations.

-CEB (cross-posted on Bill of Health)

Federal District Judge Declares Alabama TRAP Law Unconstitutional

The Washington Post:  Federal judge: Alabama can’t enforce its new abortion law, by Amy Ohlheiser:

A federal judge has told the state of Alabama that it can’t enforce a new law requiring doctors at abortion clinics to have admitting privileges in nearby hospitals U.S. District Judge Myron Thompson said in his decision Monday that the challenged portion of Alabama’s 2013 abortion law places an undue burden on women in the state, as the Alabama Media Group reported. . . . 

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The decision is available here.