Monday, February 29, 2016
[Cross-posted on Human Rights at Home Blog]: Human Rights Could Influence Whole Woman's Health v. Hellerstedt, by Cynthia Soohoo
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
The Court should consider the impact the lack of clinical abortion services will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.
SCOTUS Blog (Feb. 26, 2016): New Plea to Protect Louisiana Abortion Clinics by Lyle Denniston:
Attorneys for Louisiana abortion providers filed an application (June Medical Services v. Gee) to the Supreme Court on Friday to block a Louisiana anti-abortion law from coming into effect. The 2014 law requires patient-admitting privileges from a hospital located within 30 miles of the abortion provider. This mirrors the Texas law which is to be reviewed in oral argument by the Court next Wednesday in Whole Woman’s Health v. Hellerstedt.
The Louisiana law took effect for the first time on Thursday, after the 5th Circuit granted and emergency stay of a district court decision, thus halting abortion services in three of Louisiana's four remaining providers.
The application urged the Court to put back into effect a federal trial judge’s order barring enforcement of the requirement. In addition, the Court was asked to temporarily restore that order while the Justices take the time needed to review more fully the application.
Sunday, February 28, 2016
CNN (Feb. 26, 2016) Should parents be allowed to choose the sex of their baby?, by Carina Storrs:
Prospective parents may have preferences on whether they have a boy or girl. In vitro fertilization (IVF) opens up new possibilities for parents to choose the sex of their baby as well as controversies about whether sex selection is appropriate. The American Society for Reproductive Medicine initially took the position that use of IVF for sex selection should "not be encouraged" but recently eased its stance.
Determination of the sex of an embryo prior to implantation requires genetic screening, which provides prospective parents with genetic information about the embryo, including its sex. Some clinicians argue that manipulating the embryo to conduct the screening creates an unnecessary risk , but there is no current evidence that it is unsafe. There is also concern that the use of IVF for sex selection could divert resources away from medically necessary IVF.
Perhaps the greatest concern about sex selection is that it could cause or reinforce gender bias. In the United States, there is no evidence that parental choice would lead to a gender imbalance, and it appears more likely that sex selection is used as a form of "family balancing." For instance where parents of boys may decide they would like their next child to be a girl. However, even this "gender neutral" form of sex selection may reinforce bias and attitudes about the link between gender differences and biological sex. Canada and the United Kingdom have banned the use of IVF for sex selection except if it is used to avoid the risk of sex-linked genetic diseases.
Fox News (Feb. 24, 2016): California triplets at center of thorny surrogacy case, pro-life debate, by Eric Shawn:
Last week, Melissa Cook, a 47 year old, California gestational surrogate delivered triplets several weeks early. Although gestational surrogates have no parental rights under California law, Cook is involved in a custody dispute with C.M., the 50 year old single father who hired her. Cook and C.M. were matched through a surrogacy broker and never communicated except by email (C.M. is deaf). Three male embryos were implanted, and all of them survived. Concerned about his ability to support three children and the impact of a high risk pregnancy, C.M. requested that Cook abort one the fetuses. Cook refused.
In an recent article in Slate (Feb. 15, 2016), Is a Surrogate a Mother? Michelle Goldberg provides an overview of the case and describes current laws and controversies regarding surrogacy. Here is an excerpt from the article:
Cook and C.M. are still strangers to each other, but they are locked in a legal battle over both the future of the children she’s going to bear and the institution of surrogacy itself. Because she’s come under pressure to abort one of the fetuses, Cook’s case has garnered some conservative media attention. This story, however, is about much more than the abortion wars. It illustrates some of the thorniest issues plaguing the fertility industry: the creation of high-risk multiple pregnancies, the lack of screening of intended parents, the financial vulnerability of surrogates, and the almost complete lack of regulation around surrogacy in many states.
The United States is one of the few developed countries where commercial, or paid, surrogacy is allowed—it is illegal in Canada and most of Europe. In the U.S., it’s governed by a patchwork of contradictory state laws. Eight states expressly authorize it. Four states—New York, New Jersey, Washington, and Michigan—as well as the District of Columbia prohibit it. In the remaining states, there’s either no law at all on commercial surrogacy or it is allowed with restrictions.
Saturday, February 27, 2016
Salon (Feb. 25, 2016): Illinois Republicans target single mothers and their babies: GOP bill would ban birth certificates, financial aid if father is not named, by Sophia Tesfaye:
Last week, Republican lawmakers introduced a bill providing that if a father is not listed on a newborn's birth certificate, a birth certificate will not be issued. The the bill has been proposed as a way to limit the state's obligation for providing financial assistance. In order to obtain a birth certificate: mothers would have to name a father within 30 day, a father must be conclusively established by DNA or another family member must accept financial responsibility for the child. The bill's sponsor Rep. Jeanne Ives stated "You better know who the 'daddy' is and whether or not he can afford that child and whether or not taxpayers should be funding that or if there is actual child support he can provide."
In addition to reflecting hostile attitudes towards poor and single mothers, by denying birth certificates, the bill would discriminate against children without a named father. In addition to the denial of state benefits, lack of a birth certificate could prevent individuals from registering for school and obtaining important documents such as social security cards, passports, and drivers licenses.
The bill appears to have been killed in the Democratic controlled Illinois House of Representatives. It will be interesting to see if similar bills are introduced in other states.
Friday, February 26, 2016
Rh Reality Check (Feb. 25, 2016): Fifth Circuit Rules Louisiana Clinic Closure Law Can Take Effect, Raising Stakes in Supreme Court Fight, by Jessica Mason Pieklo:
The Fifth Circuit has granted an emergency stay of a district court decision that preliminarily enjoined a Louisiana law requiring that doctors providing abortions have admitting privileges at local hospitals. The district court concluded that the law imposed an undue burden following a six day trial. The Center for Reproductive Rights indicated that it will see an emergency relief from the Supreme Court. If the law goes into effect, all but one of Louisiana's clinics will be forced to close.
The Fifth Circuit decision comes a week before the Supreme Court is scheduled to hear oral argument on a similar law from Texas. In the Texas case, petitioners are also challenging a decision from the Fifth Circuit that found an admitting privilege and ambulatory surgical center requirements that would close 75% of abortion providers did not constitute an undue burden.
Thursday, February 25, 2016
Bloomberg Business (Feb. 24, 2016) Why it's so hard to run an abortion clinic, by Meaghan Winter.
Since 2011 at least 162 abortion providers have closed or stopped performing abortions, and only 21 clinics have opened. There are multiple reasons why abortion clinics are being forced to close - none of which correspond to the quality of care they provide. States impose laws, like ambulatory surgical center requirements, that require clinics to make unnecessary and costly renovations and increase staffing. Laws prohibiting Medicaid and insurance coverage for abortions mean that women who seek abortions, who are disproportionately below the federal poverty line, often have to pay out of pocket. This leaves abortion clinics caught between the challenges of higher costs and patients in need of services who cannot afford them. According to Bloomberg, "the average amount paid for an abortion nationwide—about $450 for the most common procedures—has been relatively stagnant for decades, despite inflation in other areas of medicine and higher costs." This leaves many clinics just barely able to break even.
In addition to dealing with hundreds of state laws designed to make care more burdensome and costly, the stigma around abortion also makes it more difficult and expensive to operate clinics.
[C]linic owners have had trouble securing mortgages, medical insurance, contractors, and someone willing to deliver Band-Aids and bottles of water. Especially in rural and conservative regions, a wide range of companies and organizations decline to work with abortion providers, either for reasons of personal conscience or because of fears that being associated with abortion will cost them business.
The cumulative impact of targeted laws and restrictions and stigma, make it increasingly difficult for clinics to stay open and for women to be able to access services.
Washington Post (Feb. 19, 2016): Texas health official out of job over study favorable to Planned Parenthood, by Sarah Kaplan:
Rick Allgeyer, director of research at the Texas Health and Human Services Commission, recently came under fire because of a report he co-authored on the impact of Texas laws that cut funding for Planned Parenthood and other family planning providers in 2013. Last week, an agency spokesman told the Texas Tribune that Allgeyer would step down from his post at the the end of March.
The study, which was published in the prestigious New England Journal of Medicine, found that following the cuts, the number of women obtaining long acting birth control through state funded family planning services dropped by a third. It also reported a 27% change in the birth rate for women who had been receiving injectable contraceptives at Planned Parenthood prior to the funding cuts.
A Republican state Senator Jane Nelson who helped design Texas's Women's Health Program claimed that the study was "biased" and lodged a complaint with the Commissioner of the Health and Human Services Commissioner, which led to the agency's investigation of Allgeyer. Peter Schenkkan, a co-author of the study, expressed disappointment. He told AP "The first step of a public official should be to face the facts. Not to punish those who bring facts to them."
Wednesday, February 24, 2016
The Slot (Feb. 22, 2016): John Kasich, Who is Terrible, Signs Bill Defunding Ohio Planned Parenthood, by Anna Merlan:
Republican Presidential Candidate and Ohio Governor John Kasich signed a bill, HB 294, to defund Planned Parenthood in Ohio on Sunday. The bill strips $1.7 million in funding from Planned Parenthood and any other entity that "performs or promotes non therapeutic abortions" or contracts with entities that do and redirects those funds to sex ed and preventative care. The law could affect hospital funding because hospitals sometimes perform abortions or contract with entities that do. According to Planned Parenthood, the lost funding had not been used for abortions but for "education and testing, including sex ed classes, a program called Healthy Moms, Healthy Babies, and HIV tests."
Mindful of his moderate campaign messaging, Kasich did not sign HB 294 in public. Instead, his office announced the signing in a statement. For more information, see the Columbus Dispatch report here.
Ms. Magazine Blog (Feb. 19, 2016): Menstrual Products are Taxed in 40 States. Here's What You Can Buy Tax-Free, by Jennifer Weiss-Wolf:
Public attention has recently focused on sales taxes on menstrual-health products across the country. Such taxes impact women disproportionately, and particularly poor women. Even President Obama commented on the issue last month when prompted by YouTube star, Ingrid Nilsen. Response to the issue has varied from state to state.
Since January, there has been a flurry of activity in state houses across the country, with “Tampon Tax” bills introduced or resurrected in California, Connecticut, Michigan, New York, Utah,Virginia and Wisconsin, most with bipartisan sponsorship. The City of Chicago introduced a comparable ordinance, along with a statement of approval from Mayor Rahm Emanuel.
While some argue that taxes cannot be lifted due to state budgetary concerns, all state tax codes already exempt some products from sales tax, including pop-tarts, garter belts, and snowmaking equipment. As such, state legislatures may opt to subsidize the basic health products for women in the United States.
Tuesday, February 23, 2016
Atlantic (Feb. 19, 2016): The Muddled Future of Reproductive Rights, by Julie Rovner:
Prior to Justice Scalia's death, the Supreme Court frequently voted 5-4 votes on controversial decisions. Following Justice Scalia's death, there is a chance that the Court could deadlock, 4-4 in cases this term. When there is a tie vote, the appellate court's decision will stand, but it does not create national precedent.
This March the Supreme Court is scheduled to hear two reproductive rights cases, one on abortion and one on contraceptive insurance coverage. Whole Women's Health v. Hellerstadt challenges a Texas law that imposes restrictions on abortion clinics. The district court struck down the law, but the Fifth Circuit's decision reversed the district court and would allow the law to go into effect with minor changes. Zurbik v. Burwell challenges the religious accommodation that has been created for religious-affiliated institutions who wish to opt-out of contraceptive coverage. Current rules do not require that religious hospitals or schools contract for contraceptive coverage. Instead, they must inform the government who their insurer is so that the government can arrange for coverage. The lower courts in the cases consolidated in Zurbik found that the administration's rules don't violate religious rights.
Because appellate courts have ruled differently on both the contraceptive regulations and the constitutionality of laws like the Texas law challenged in Whole Women's Health, a tied Supreme Court decision would prolong Circuit splits. If the Supreme Court cannot reach a decision in the two cases, it can also hold them over and re-hear them next term.
RH Reality Check (Feb. 18, 2016): Pope Francis Suggests that Contraception May Be Acceptable for Catholics Fearing Zika Virus, by Jodi Jacobson:
The Zika virus, now found in 34 countries, may cause microcephaly in infants born to recently infected women. Some countries, including El Salvador, have responded to the recent increase in microcephaly by advising that women avoid pregnancy for up to two years. Last week, Pope Francis responded to questions about Zika virus, saying that it may be acceptable for Catholics to use contraception to avoid pregnancy when fearing possible infection.
Asked during a press conference whether abortion or birth control could be considered a “lesser evil” in response to the Zika virus, which appears to be linked to birth defects, the Pope replied that he believes abortion is a crime and is never acceptable, but that the use of modern birth control (“artificial contraception” in church parlance) may be permitted in exceptional circumstances.
Abortion “is an evil in and of itself” the Pope claimed. “On the other hand, avoiding pregnancy is not an absolute evil,” he said, referring to prior circumstances in which the church has sanctioned the use of birth control, such as in the 1960s, when nuns were subject to rape as a weapon of war in the Belgian Congo.
The Pope's statements may encourage Catholic countries to make contraceptives more readily available, thus avoiding increased birth defects due to Zka virus.
Saturday, February 20, 2016
New York Times (Feb. 11, 2016): Judge Again Blocks Abortion Law:
A federal judge on Wednesday issued a new order blocking Louisiana from enforcing a law that he says would keep most women from receiving abortions. Lawyers for the state immediately asked the judge, John deGravelles, to stay the order while they appeal it and his Jan. 26 finding that the law is unconstitutional. The law requires doctors who perform abortions to be able to admit patients to a hospital within 30 miles. Supporters say that would protect women’s health. Opponents say it would make it impossible to receive abortions. Judge DeGravelles said in January that of six doctors performing abortions in Louisiana, only two met the requirement, and one of them has said he would quit if the law is enforced. The judge said forcing the other five doctors out of their clinics would leave about 70 percent of the women who want abortions unable to get one.
Friday, February 19, 2016
New York Times (Feb. 11, 2016): Pregnancy Clinics Fight for Right to Deny Abortion Information, by Erik Eckholm:
At more than 3,000 crisis pregnancy centers (CPCs) run by religious opponents of abortion, a woman cannot obtain information on where to obtain an abortion. To fight a California law requiring such centers to post a notice that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, some CPCs are claiming a free-speech right to withhold such information. Attempts in other states to regulate CPCs in this fashion have been struck down by federal courts. But courts in California have so far refused to enjoin the regulations, the theory being that they do not force the CPCs to declare their religious beliefs but merely require them to provide factual information about public programs. There are lingering concerns that CPCs are misleading pregnant women with false information about the complications of abortion and its longer-term effects.
Thursday, February 18, 2016
Colorlines (Feb. 9, 2016): Black Lives Matter Partners With Reproductive Justice Groups to Fight for Black Women, by Kenrya Rankin:
Today, leaders from Black Lives Matter, Trust Black Women and New Voices for Reproductive Justice connected to discuss the intersectionality of the movements to save the lives of Black women and how activists and politicians can align and amplify the message.
According to Feministing,
leaders discussed abortion access, the Flint water crisis and environmental justice, and state violence. This partnership solidifies the commitments of both movements to intersectional, collaborative work and positions them to address some of the most pressing issues in Black communities.
Trust Black Women defines intersectionalism as the "understanding that the impacts of race, class, gender and sexual identity oppressions are not additive but integrative." This theory is fundamental to reproductive justice work. Intersectional collaboration such as this will grow solidarity and impact of participating groups.
Wednesday, February 17, 2016
New York Times (Feb. 9, 2016): Chinese Who Violated One-Child Policy Remain Wary of Relaxed Rules, by Kiki Zhao:
Before China dismantled its one-child policy, couples who violated it often could not surmount the hurdle of obtaining the registration document (hukou) necessary for their second child to attend state schools, receive health care, marry, open a bank account or even buy train tickets. Now that hukous have been declared a right of all citizens and the one-child policy has been lifted, parents are still worried that they will be required to pay a fine for violating the one-child policy when it was the law. Municipal governments throughout China have not been clear or uniform in their messages about whether fines will be imposed retroactively.
Ms. Magazine Blog: Texas Anti-Abortion Law is Having a Predictably Terrible Effect on Women, by Lily Wujek:
The University of Texas at Austin recently released a study on the impact of Texas's HB2 Anti-Abortion Law on access to contraception and abortion services. HB2, which excludes Planned Parenthood affiliates from Texas' fee-for-service family planning program, is currently under review by the U.S. Supreme Court in Whole Woman's Health v. Hellerstedt.
The study found that after being turned away from a closed clinic, eight of the 23 women interviewed had to wait more than a week to obtain an abortion. Two of these women were not seen until after 12 weeks of pregnancy, despite initially seeking abortion care in the first trimester. Two women in the study could not obtain an abortion at all as both lived in areas of Texas that were left without an abortion provider after HB2 came into effect, and both had initially sought services early in their pregnancies. They ended up continuing their pregnancies because they did not have the resources to travel to another clinic.
According to a press release put out by the University,
After the [passage of HB2], provision of the most effective reversible methods of contraception (IUDs, implants, and injectable contraception) decreased and Medicaid-paid births increased among injectable contraceptive users. Claims for IUDs and implants declined 35 percent and claims for injectable contraceptives declined 31 percent.
The study, entitled Effect of Removal of Planned Parenthood from the Texas Women’s Health Program, is published in the New England Journal of Medicine.
Monday, February 15, 2016
Mic (Feb. 1, 2016): A United Nations Committee Officially Ruled Abortion a Human Right, by Julie Zeilinger:
The United Nations Human Rights Committee has ruled that abortion is a human right in a Peruvian case where the petitioner was denied an abortion even though it would have been legal due to the grave condition of the fetus. The fetus was afflicted with anencephaly, meaning it would not have a brain and would not survive. The teenage mother cared for the child for four days before it died and then sank into a deep depression. The Committee determined that Peru had violated the International Covenant on Civil and Political Rights and awarded the mother compensation.
Sunday, February 14, 2016
Slate (Feb. 1, 2016): White Feminism Downplayed California's Coerced Sterilization of Latinas in the '70's, by Christina Cauterucci:
This week, PBS aired the 2015 documentary No Más Bebés, chronicling the sterilizations of Mexican immigrant mothers giving birth at Los Angeles County-USC Medical Center during the 1960s and 1970s.
The film centers on a time period when the reproductive justice movement split as white women focused on the right to access abortion services and contraception while Latina women responded to coerced sterilization by advocating for statutory waiting periods before sterilizations were granted. This separation of priorities has since created strong divisions in the movement for reproductive justice, on both race and class lines.
“Since the beginning, the narrative of reproductive rights has focused so much on abortion,” No Más Bebés director Renee Tajima-Peña told me. “More and more today, the conversation around reproductive freedom does focus on the full spectrum of a woman’s reproductive rights—to have a child or not have a child. But it’s taken many decades, and a lot of work, especially [by] organizations led by women of color, to change that conversation.”
Watch No Más Bebés by clicking here.
Saturday, February 13, 2016
New York Times (Feb. 7, 2016): Federal Judge Orders Abortion Foes Not to Release Secretly Filmed Videos, by Barry Meier:
A federal court judge has dealt a blow to the instigators of last summer's smear campaign accusing Planned Parenthood of selling fetal tissue. Judge William Orrick prohibited the Center for Medical Progress from releasing videos they had made and rejected the group's claim that its investigation was protected journalism. The group's campaign triggered efforts to de-fund Planned Parenthood even though the hundreds of hours of recordings revealed that Planned Parenthood had engaged in no wrongdoing.