Reproductive Rights Prof Blog

Curb on Second-Trimester Abortion Method Vetoed

New York Times (Mar. 10, 2016):  Governor Vetoes Curb on an Abortion Method:

Gov. Earl Ray Tomblin on Wednesday vetoed a ban on a second-trimester abortion practice. The bill would ban dilation and evacuation method abortions unless the doctor has caused the death of the fetus. It would not ban the method in cases of medical emergency. There would not be criminal or civil penalties, but physicians could potentially lose their medical licenses. The governor, a Democrat, cited concerns about constitutionality and patient safety. Courts blocked similar bans on the commonly used practice that Kansas and Oklahoma enacted in 2015. The Republican-led Legislature passed the bill alongside some Democrats. West Virginia lawmakers can override the veto with a simple majority of both chambers. Last year, lawmakers overrode Mr. Tomblin’s veto of a ban on abortions 20 weeks after conception.

Bill to Punish Unwed Mothers Withdrawn

Daily Illini (Feb. 29, 2016):  Illinois Representatives Drop Bill after National Outcry

Two Republican lawmakers in Illinois have withdrawn a proposed law that would have denied public assistance and birth certificates to the children of unwed mothers who do not name the fathers of their children.  The penalty would not apply to children whose biological fathers were identified conclusively through DNA evidence or who had a family member agree to support the child. The bill included an exception for artificial insemination as long as the mother waived her right to public assistance for the child.  The bill did not, however, include an exception for rape and incest.

The lawmakers withdrew the bill after a national outcry was triggered by editorials criticizing the bill and published on Salon, Chicagoist and Jezebel. 

 

 

First Successful Uterine Transplant in the United States

New York Times (Feb. 25, 2016): First Uterus Transplant in U.S. Bolsters Pregnancy Hopes of Many, by Denise Grady:

Doctors at the Cleveland Clinic have performed the first uterus transplant in the United States.  The recipient is already a mother, having adopted three boys.

The surgery is complex and multi-phased.  The recipient first undergoes egg extraction.  The eggs are then fertilized with the sperm of her partner, and the resulting embryos are frozen.  The recipient then begins a regime of immunosuppressants, in preparation for the transplant.  She will be monitored for a year to determine whether the transplant was successful.  Only then will embryos be introduced into the uterus.  After one or two successful pregnancies, the uterus will be removed.   

The Cleveland Clinic will attempt ten uterine transplants as part of a clinical trial to determine whether it will offer uterine transplant as a standard procedure.

The development of uterine transplants has been profiled in this space twice before, once in 2007 and again last fall.

Veterans and Infertility

New York Times (Feb. 29, 2016): Veterans Seek Help for Infertility Inflicted by Wounds of War, by Denise Grady:

Despite a new policy giving troops the opportunity to freeze their eggs or sperm before deployment, the military offers veterans no coverage for in vitro fertilization (IVF), leading to questions about how best to support soldiers who sustain injury to their reproductive systems in combat and are medically retired or discharged from the military.  Adding insult to injury is the fact that the military does cover IVF for active-duty service members.  A bill to rectify this inequity was headed toward a vote last summer, but its sponsor withdrew it when Republicans threatened to riddle it with exceptions that would prohibit the Veterans Administration from having anything to do with Planned Parenthood. 

Whole Woman’s Health Argument Actually Focused on Women’s Health

Whole Woman’s Health Argument Actually Focused on Women’s Health. by Cynthia Soohoo

Following Wednesday’s argument in Whole Woman’s Health v. Hellerstedt, commentators have focused on the impact of the women on the Court. One area where Justices Ginsburg, Sotomayor and Kagan made their presence felt was on the quality of the Court’s discussion of women’s health. Collectively, they (with significant help from Justice Breyer, and even some from Justice Kennedy) probably spent more time considering the health impacts of Texas HB2 than the entire Texas legislature did when it passed the law.

And, it was appropriate that they did. Since it would be unconstitutional for Texas to pass a law with the purpose of preventing women from having abortions, the Texas Solicitor General had to argue that HB2 was enacted to protect women’s health. Petitioners have maintained that by delaying or preventing women’s access to abortion, the law actually increases the health risks that women face.

The challenged law imposes two requirements: (1) that doctors who perform abortions have admitting privileges at hospitals within 30 miles and (2) that facilities that provide abortions meet the requirements of an ambulatory surgical center (ASC). Collectively, the requirements will result in closure of three-quarters of Texas’s abortion clinics (About half of Texas’s 40 clinics closed when the admitting privileges requirement went into effect. The ASC requirement has been stayed).

The Texas SG tried to make broad, conclusory statements that the additional requirements would make abortion provision safer, but the Justices pushed back asking the SG why the requirements were necessary given the nature of abortion procedures – medical abortion just requires women to take two pills and early surgical abortion does not even involve general anesthesia - and the procedures’ extremely low complication rates.

Justices Sotomayor questioned the necessity of having a woman “travel 200 miles or pay for a hotel” to take 2 pills for a medical abortion in an ambulatory surgical center. When the Texas SG later tried to argue that the ASC requirement was necessary in case complications arose, Justice Ginsburg shut him down, noting that if complications arose from a medical abortion, they would happen several hours later after the woman returned home.

The Justices also took note that the risks associated with abortion are extremely low, less than 1% (the risks of a colonoscopy are 28 times greater) and did not justify the ASC or admitting privileges requirement. Justice Sotomayor pointed out that surgical abortion is essentially the same medical procedure as the treatment women receive following a miscarriage, but Texas has not imposed additional requirements for treatment of miscarriages. After Justice Ginsburg noted that early stage abortion is “among the most safe” and “least risk procedures” and that child birth is much riskier, the Texas SG made the mistake of trying to disagree with her. Justice Ginsburg shot back, “Is there really any dispute that childbirth is a much riskier procedure than early stage abortion.”

Several Justices also showed real concern about the law’s negative impact on women’s health. Justice Kennedy noted that the law appeared to be increasing surgical abortions as opposed to medical abortions in Texas, which “may not be medically wise.” Justice Sotomayor expressed concern that the lack of access to legal clinical care would bring us back to the time before Roe v. Wade, where women were forced to get abortions from unlicensed providers. And, Justice Breyer questioned Texas’s health purpose given evidence that lack of accessibility will increase self-induced abortions and the risk of “many more women dying.”

The Justices also emphasized the need to consider how the law affects access to care for all Texas women. Justices Kagan and Ginsburg pushed back on the Texas SG’s statement that the law would leave abortion facilities in metropolitan areas.   Justice Kagan pointed out that in 2012 less than 100,000 women lived more than 150 miles from an abortion provider, and as a result of the law 900,000 women would live further than 150 miles from a provider and 750,000 further than 200 miles. Justice Ginsburg emphasized that in determining women’s access to abortion under Planned Parenthood v. Casey, “the focus must be on the ones who are burdened and not the ones who aren’t burdened.” Thus, the Court’s inquiry should not focus on the women who live in Austin or Dallas but “the women who have the problem who don’t live near a clinic.”

Many of the questions posed by Justices Ginsburg, Sotomayor, Kagan and Breyer revealed skepticism about Texas’ asserted health justification for the requirements. In responding to questions about availability of services, the Texas SG stated that women in West Texas could obtain abortions in New Mexico. Justice Ginsburg questioned how Texas could rely on women traveling to facilities in New Mexico, which does not impose admitting privileges or ASC requirements.

The Texas SG was repeatedly questioned about the lack of evidence of a need for the new restrictions and the fact that Texas did not act to impose similar requirements on much riskier procedures. He consistently responded that the Texas legislature can set much higher standards on facilities that provide abortion than facilities providing much riskier procedures. Then, Justice Kagan asked the question that was on everyone’s mind, “I just want to know why Texas would do that?”

Wednesday’s argument is a good indication that at least half of the Justices understand and take the impact of the Texas law on women’s health and access to abortion seriously. Hopefully, that understanding and respect for women’s health will be reflected in the Court’s decision.

Argument in Whole Woman's Health v. Hellerstedt

Check out SCOTUS blog for the roundup of news coverage following the Whole Womans Health v. Hellerstedt argument, a view from the courtroom by Mark Walsh, Lyle Denniston's take on the argument, and the transcript. 

Information About Whole Woman's Health v. Hellerstedt

The Supreme Court hears oral argument in Whole Woman's Health v. Hellerstedt today, its first major abortion case in many years.  In D.C., the Center for Reproductive Rights has organized the Rally to Protect Abortion Access at the Supreme Court from 8 AM-noon.  

If you would like to learn more about the case, SCOTUS blog provides commentary on the case and links to the briefs filed, including the 45 amicus briefs filed supporting Whole Woman's Health.  In the past few days, major news sources have summarized and commented on the case:

• International Business Times (Feb. 29,2106): Whole Woman's Health vs. Hellerstedt: What to Know About the US Supreme Court's Next Abortion Case, by Adam Lidgett
• The Atlantic (Feb, 29, 2016): Will the Supreme Court Take Precedent Seriously on Abortion?, by Garrett Epps
• RH Reality Check (Feb. 29, 2016): Is One-Sixth a 'Large Fraction' When It Comes to Our Constitutional Rights?, by David S. Cohen and Jeffrey B. Bingenheimer
• Christian Science Monitor (Feb. 28, 2016): In Texas, a side of abortion debate few ever see, by Warren Richey
• New York Times (Feb. 27, 2016): Why Courts Shouldn't Ignore the Facts About Abortion Rights, by Linda Greenhouse

  And, if you still want to learn more, John Oliver's Last Week Tonight provides a funny, in-depth summary of the case.

Rise of Religious Hospitals Threatens Women's Health

ACLU Blog (Feb. 25, 2016): The Rising Threat of Religious Hospitals Denying Women Medical Care, by Alexa Kolbi-Molinas:

Catholic hospitals across the country follow the religious directives of the United States Conference of Catholic Bishops. This means that such hospitals will, for example, withhold medical services when a pregnant woman is hemorrhaging until her death is sufficiently imminent rather than induce labor to complete a miscarriage. 

Currently, 10 of the 25 largest hospitals in the US are Catholic-affiliated.  These hospitals receive federal funds, but they follow religious policies that deviate from the medical standard of care. These unlawful procedures have prompted the ACLU to file suit in cases such as Tamesha Means v. United States Conference of Catholic Bishops in order to force changes in policy.  

The Lawyer Leading the Fight to Preserve Access to Abortion

Huffington Post (Feb. 24, 2016): This Lawyer's First Supreme Court Case Will Decide The Fate of Abortion Rights, by Laure Bassett:

During tomorrow's Supreme Court argument in Whole Woman's Health v. Hellerstedt, petitioners will be represented by lead counsel Stephanie Toti. Toti, 37, is an experienced litigator, who has done arguments in dozens of abortion rights case. Tomorrow's argument will be her first before the Supreme Court.

Most litigators who argue big cases before the Supreme Court are white men who have done it before. An elite group of 66 lawyers -- only eight of whom are women -- argued nearly half of the cases before the high court from 2004 to 2012, according to a 2014 Reuters analysis of 17,000 attorneys. Some of those attorneys have argued dozens of cases before the court, and nearly half of them are graduates of Harvard or Yale law schools who clerked for Supreme Court justices after graduation. That narrow representation turns the court into what the Reuters investigators described as an “echo chamber."

In contrast, the Court's major abortion cases have been argued by women. Sarah Weddington was 27 when she argued and won Roe v. Wade. When Kathryn Kolbert argued Planned Parenthood v. Casey, she was 40 and had only one prior appearance before the Supreme Court. Toti hopes to follow in Weddington and Kolbert's footsteps.

In addition to her in-depth knowledge about abortion rights, Toti has the advantage of having developed and worked on the case since it was filed in August of 2014. Toti's co-counsel, a partner at Morrison & Foerster, whom the Texas Solicitor General repeatedly mistook for lead counsel in the case says, "Stephanie knows the case backwards and forwards. . . . That is an asset that cannot be undervalued. I would not have wanted anyone else to argue this case. Including myself."