Thursday, April 27, 2017
New York Times (April, 27, 2017): Spreading Plan C to End Pregnancy, by Patrick Adams:
As access to clinical abortion becomes more restricted in the U.S., there are growing discussion about the legality and safety of self-induced abortions. And evidence suggests that more women may be considering self-induction as an option for dealing with an unwanted pregnancy. Since 2011, researchers have documented a significant increase in google searches for self-induced abortion.
For many, non-clinical abortions raise concerns about safety. Unsafe, illegal abortions have led to high maternal mortality rates in countries where abortion is illegal and highly restricted. However, not all methods of self-inducing an abortion are inherently unsafe.
The reality, however, is that increasingly, self-induced abortion in the United States means using pills procured through the mail, much as it is in many other countries. Women on Web, a Netherlands-based nonprofit collective that pioneered the practice of putting the pills directly into women’s hands, has provided abortion medications to more than 50,000 women in 130 countries.
Women on Web and Safe2Chooae, another organization that provides abortion pills do not mail pills in the U.S. because of concerns about legal restrictions. Ironically, this has meant that U.S. women who are unable or unwilling to see a licensed abortion provider must resort to unregulated sites found on the internet. This poses the risk that pills may be counterfeit. And women who choose to self-induce also face legal risks.
“We’ve discovered 40 different kinds of laws that are potentially implicated when someone ends their own pregnancy,” said Jill E. Adams, chief strategist of the Self-Induced Abortion Legal Team, a nonprofit consortium formed in 2015 to support advocates who legally share information on self-induced abortion and to halt its criminalization. So far, she said, the S.I.A. team has identified 18 arrests related to self-induced abortion around the country, “but I’m afraid that’s just what made the news. I suspect the true number is significantly higher.”
Wednesday, April 26, 2017
FiveThirtyEight (April 24, 2017): Some States Are Making it Easier to Get Birth Control, by Amelia Thomson-DeVeaux:
As we wait to see whether the Trump Administration will get rid of the contraceptive mandate in the Affordable Care Act (ACA), some states are taking steps to protect contraceptive access.
Unlike other controversial parts of the ACA, [the contraceptive mandate] is controlled by the Department of Health and Human Services, which could unilaterally drop birth control from Obamacare’s list of fully covered preventive services, allowing insurers to charge co-pays for contraception again. If the mandate were revoked or weakened, insurers could return to the pre-Obamacare status quo, where women shouldered more out-of-pocket expenses for contraception.
Perhaps motivated by federal threats to birth control several states have passed or introduced laws that could maintain or expand women's access to contraceptives. Some states have passed laws that would reinforce or expand the contraceptive mandate. Others have passed laws requiring that insurers provide a 12 month supply of birth control. These laws are intended to make it easier for women to obtain contraceptives by decreasing trips to the pharmacy. Finally, states have passed laws allowing pharmacists to prescribe birth control.
While it is good to see that state innovation in expanding access to birth control, advocates are worried about the growing disparities between states. An OB-GYN from Washington cautioned:
It’s great that big states like New York are making this a priority, because they can affect a lot of women,” she said. “But the more politicized the issue of women’s health becomes, the more women’s birth control access really will depend on where they happen to live.”
Tuesday, April 25, 2017
Irish Times (April 22, 2017): Irish Citizens Assembly votes to amend abortion laws, by Niamh McIntyre:
Currently Ireland has one of the most restrictive abortion laws in the world, only legally permitting abortions in cases where the pregnancy presents a real and substantial risk to a woman's life. This has been interpreted to include instances where the pregnancy is the result of a rape. Ireland has been criticized by human rights bodies because it has been difficult for women to actually obtain abortions under the circumstances it is legal and because the law does not allow women to have an abortion in cases of several fetal anomalies. Ireland came under international scrutiny a few years ago when a hospital failed to perform an abortion on a woman who was severely hemorrhaging following a miscarriage who died because of lack of treatment.
The government's ability to amend its laws is constrained by the 8th Amendment to the Irish Constitution which recognizes “the right to life of the unborn . . . with due regard to the equal right to life of the mother.”
The Irish government convened a Citizens Assembly to determine whether to change the 8th Amendment. The Assembly was composed of 99 members of the public that has met regularly since last October.
Eighty-seven percent of the Citizens Assembly voted against retaining the 8th Amendment in its current form. However, the Assembly voted in favor of replacement or amendment of the 8th Amendment rather than simply deleting the 8th Amendment without replacement. The Assembly will now move onto a third vote considering when abortion should be permitted. The Assembly also recommended that there be a national referendum on Irish abortion laws.
Thursday, April 20, 2017
The Supreme Court's decision in Whole Woman's Health is having a impact on state targeted regulations against abortion providers. In Whole Woman's Health, the Supreme Court struck down two parts of a Texas law that required that facilities providing abortions meet the same requirements as ambulatory surgical centers (ASC) and that physicians providing abortions have admitting privileges in nearby hospitals.
On Wednesday, a federal judge in Missouri granted a preliminary injunction against state ASC and admitting privileges requirements. Missouri currently only has one abortion provider. Following the judge's decision, Planned Parenthood announced plans to restore abortion services at four additional other locations in the state.
Last week, the Tennessee Attorney General announced that the state will cease enforcing admitting privilege and ASC requirements. The statement was issued in response to a lawsuit brought by three Tennessee clinics in 2015. A federal court stayed proceedings in the case to await the Supreme Court's decision in Whole Woman's Health. However, the state will continue to defend a third provision passed by the Tennessee legislature which requires women to wait 48 hours after obtaining counseling before obtaining an abortion. The state legislature is currently considering two new anti-choice bills despite the fact that the Attorney General has issued an opinion finding the bills "suspect" and "constitutionally infirm."
Tuesday, April 18, 2017
Professor Linda C. Fentiman has just published a new book, Blaming Mothers: American Law and the Risks to Children's Health. According to the publisher:
In Blaming Mothers, Professor Fentiman explores how mothers became legal targets. She explains the psychological processes we use to confront tragic events and the unconscious race, class, and gender biases that affect our perceptions and influence the decisions of prosecutors, judges, and jurors. Fentiman examines legal actions taken against pregnant women in the name of “fetal protection” including court ordered C-sections and maintaining brain-dead pregnant women on life support to gestate a fetus, as well as charges brought against mothers who fail to protect their children from an abusive male partner. She considers the claims of physicians and policymakers that refusing to breastfeed is risky to children’s health. And she explores the legal treatment of lead-poisoned children, in which landlords and lead paint manufacturers are not held responsible for exposing children to high levels of lead, while mothers are blamed for their children’s injuries.
An excerpt from the book is available on Broadly.
Monday, April 17, 2017
Business Insider (April 12, 2017): Grandma activists fight for the reproductive rights of young women, by Caroline Praderio:
Four years ago, Grandmas for Reproductive Rights or GRR! was founded by a group of women in Maine to protect access to reproductive health services. GRR! adds an important perspective to their work:
most members recall a time when abortions were illegal — sometimes deadly — and contraception was difficult to access. Before 1972, for example, it was illegal for unmarried American women to possess birth control.
"I think that age has something to do with the impact that we have," [said Judy Kahrl]. "Because we've lived through it — we've seen what happened in the past."
Since 2013, the grandmas have met with legislators, testified at legislative hearings, marched in protests, and one member ended up running for office. Jay McCreight, an original member of GRR!, is now serving her second term in the Maine House of Representatives and successfully introduced a bill giving low income Maine citizens access to free reproductive health care.
The grandmas are inspiring others. Following a post on the Facebook group Pantsuits Nation, the group has received 16,000 likes and multiple requests to join the group. Now GRR! has become a 501(c)(4) organization and is looking to expand in other states.
Friday, April 14, 2017
New York Times (Apr. 14, 2017): Voiding Obama Rule, Trump Signs Law Taking Aim at Planned Parenthood, by Julie Hirschfeld Davis:
At the end of his term, President Obama, responding to a spate of red state initiatives to defund Planned Parenthood, promulgated a regulation banning states from withholding federal funding for family planning only if the provider is unable to provide family planning services. The mere fact that a family planning provider performed abortions was not reason enough for withholding funds. A new law, the tiebreaker vote on which was cast by Vice-President Mike Pence, guts this late-term regulation. Under the law, states may cut the federal funding of groups that perform abortions. The law takes a step further the already existing ban on using federal government money for abortion except in cases of where a woman's life is at stake or the pregnancy was the result of rape or incest.
President Trump, who signed the law yesterday, is an opponent of abortion. Early in his term he reinstated a regulation blocking federal funding for any nongovernmental organizations worldwide that provide abortion counseling.
Anti-abortion conservatives have been cheered by Trump's actions and foresee further legislative activity that will withdraw public support of family planning that includes abortion.
Wednesday, April 12, 2017
by Richard Storrow
In the wake of the confirmation of Justice Neil Gorsuch, two experts have weighed in on the future of the United States Supreme Court. Both Adam Liptak and Lisa Marshall Manheim agree that we will see little difference in the work of the Supreme Court in the short term. After all, Gorsuch is a "one-for-one" "close match" for Justice Antonin Scalia.
Both Liptak and Manheim do predict notable changes in the long term, however. Manheim believes the "realignment of checks and balances" that accompanied Gorsuch's confirmation has strengthened the executive branch's power to appoint. With filibusters and the need for approval by sixty senators out of the way, presidents may feel emboldened to nominate ideologues that appeal to their political supporters. Such nominations, if successful, could polarize the court and upend the "ideological balance" that currently prevails. Yes, perhaps. But Manheim admits that this scenario may depend on whether the president's party has control of the Senate.
Liptak's contribution, noting that party affiliation has become a strong predictor of voting trends for the members of the Supreme Court, speculates on what would have happened had Judge Merrick Garland joined the supreme bench. Chief Justice Roberts would have been ideologically sidelined and Citizens United would have been scheduled for the chopping block. Oh, what might have been. Reminding us that the Court's liberal wing is aging, Liptak believes the arrival of Gorsuch portends a reinvigoration of the projects of the Roberts court: deregulation of campaign finance, rollbacks of voting rights, roll forwards of gun rights and an insistence on race blindness in everything from education to housing.
Neither author mentions that Gorsuch's claimed originalism remains inadequately categorized. As David Dorsen notes in The Washington Post, as a lower court judge, Gorsuch was constrained by Supreme Court precedent, and his writings on euthanasia are not those of an originalist but of a moral philosopher. Only in a 2016 law review article does Gorsuch embrace a vigorous originalism. But the article is the transcript of a speech, which, delivered in the wake of Justice Scalia's death, became mired in encomium. Given the context, the originalism it describes is a caricature without nuance. It fails to grapple with the practicalities or the wider ramifications of being a judge who adheres to a particular brand of originalism. It tells us little about what Gorsuch believes originalism is or how it should be used to address the issues of our day.
Contrary to Dorsen, I would submit that we probably do gain good insight into Gorsuch's brand of originalism from his concurrences and dissents while serving on the 10th Circuit Court of Appeals. It is a narrow originalism capturing Gorsuch's disdain for the administrative state. It focuses squarely on ideas about the separation of powers and how those lines have become blurred with the mushrooming of the fourth branch. But it is not an originalism that seeks to aggrandize power in the elected branches, as was Scalia's. Instead, Gorsuch views the separation of powers as essential to due process and equal protection. See, e.g., Gutierrez-Brizela v. Lynch (10th Cir. 2016). This could be good news for those who worry about what position he will take on questions of affirmative action, immigration and abortion, subjects about which he has not yet said enough.
Thursday, April 6, 2017
New York Times (Apr. 4, 2017): Does Birth Control Cause Depression? by Aaron E. Carroll:
A study published in the Journal of the American Medical Association Psychiatry suggests that hormonal contraceptive use may trigger depression. The study examined all women and adolescent females in Denmark from 2000 through 2014. It found that those who used hormonal contraceptives "had significantly higher risks of also taking an antidepressant." The risks were higher in adolescents than in women and decreased as the subjects aged.
Placed in the context of other studies that have examined hormonal contraceptive use, the study comes up short. It's not a controlled trial and does not even remotely establish causation. It is also easy to criticize it on the basis that "anti-depressant use isn't the best measure of new-onset depression."
Data from other studies appear to contradict the JAMA study: "the data that do exist show that most women don't show any effect from hormonal birth control, or actually had their mood improve. Moreover, "women who have underlying mood disorders were more predisposed to have mood-related side effects." The JAMA introduces intriguing and "newsy" findings into the mix, but is by no means the last word on the subject. The topic of hormonal birth control and mood is best explored in the context of the patient-physician relationship. When viewed up against the fact that birth control is "[o]ne of the biggest American victories of the last decade," the fact that it may contribute to depression may be a risk worth taking.