Reproductive Rights Prof Blog

SCOTUS Will Hear An Abortion Rights Case With Major Implications

Bustle (Nov. 13, 2019): SCOTUS Will Hear An Abortion Rights Case With Major Implications, by Jo Yurcaba:

The Supreme Court of the United States will hear the Louisiana abortion case June Medical Services v. Gee. The case was appealed from the 5th Circuit by June Medical and challenges a state law that will require abortion-providing clinics to have admitting privileges at a local hospital.

Louisiana, in the course of the appeal, also seeks the have the Court overturn "third-party standing" precedent. This long-standing rule allows clinics and providers to sue on behalf of their patients. Without such a rule, many pregnant persons would not choose to lose their anonymity by filing a case or else may not have the means to pursue comparable litigation in defense of their rights.

Anti-abortion activists and lawmakers hope to eliminate third-party standing as a way to keep challenges to abortion restrictions out of courts in the first place. Should the court strike down the validity of third-party standing, it may also call into question prior abortion precedent--including 1973's landmark Roe v. Wade--which was won without a direct patient-plaintiff.

Third-party standing was established just three years after Roe. Justice Blackmun at the time held that physicians have a unique ability to speak for their patients, stating that the physician is particularly qualified "to litigate the constitutionality of the State's interference with, or discrimination against" a person's abortion rights. Blackmun specifically acknowledged the gamut of challenges those facing abortions face. Experts cite, for example, that half of all women who get abortions are low-income and certainly cannot match the resources of their abortion providers in defending their rights.

Travis J. Tu, Senior Counsel for the Center for Reproductive Rights, is arguing the June Medical Services case before SCOTUS and says that overturning third-party standing could "take a wrecking ball to 40 years of abortion jurisprudence." 

June Medical Services echoes a prior case SCOTUS decided in 2016: Whole Woman's Health v. Hellerstedt. Hellerstedt ruled that Texas' House Bill 2, which attempted to implement similar targeted regulations of abortion providers (TRAP), was unconstitutional and placed an undue burden on persons seeking abortion access. 

Despite the 2016 decision in Hellerstedt, the 5th Circuit decided against precedent, upholding the Louisiana law. 

Proponents of laws imposing admitting privileges generally justify them on the purported ground that they protect the health of pregnant persons seeking abortions. In reality, many hospitals will not grant admitting privileges, because they are not necessary. 

TRAP regulations at their core are intended by anti-abortion activists to regulate abortions out of legal existence. Like the law at issue in June Medical, TRAP regulations generally require abortion providers to have admitting privileges at local hospitals, but they may also impose other requirements, including that abortions only be provided in certain, costly, far-more-complicated facilities than is reasonably necessary. The intended effect of TRAP laws is the same: severely limiting, if not outright abolishing, any clinics or providers who can legally offer abortions. 

If the Louisiana law is upheld, June Medical Services will be the only remaining abortion-providing clinic in the state after two others are regulated out of existence. The eventual decision in June Medical will bring comparable consequences, whichever way it goes, for the many pending cases challenging similar abortion-restricting laws around the country. 

Mexico's Supreme Court Affirms Abortion Access as Right

Reprohealthlaw Blog Commentaries (Oct. 31, 2019): The Mexican Supreme Court's latest abortion ruling: In between formalities, a path to decriminalization, by Estefanía Vela Barba: 

In Mexico's Supreme Court's latest abortion ruling, issued earlier this year, the justices of the First Chamber found that denying a woman access to abortion when her health may be at risk is unlawful, violating her right to health codified in the San Salvador Protocol and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  

The San Salvador Protocol is an additional protocol to the American Convention on Human Rights that expands on the original protections of economic, social, and cultural rights referenced in the American Convention. In General Comment No. 14, the Committee on Economic, Social and Cultural Rights interpreted Article 12 of the ICESCR to affirm the right to individual autonomy regarding one's own health decisions and the right to attain the highest standard of health.

The Mexican Court relied on these international instruments in tandem with their constitution to emphasize that the right to health includes the right to access the "full range of facilities, goods, services, and conditions" necessary to execute one's health decisions and attain the highest possible level of health. 

The Court held that Mexico's General Health Law, which does not "explicitly contemplate access to abortion," must be interpreted in a way that is compatible with the internationally-codified right to health. The Court further understood that health holistically encompasses physical, mental, and social well-being "as defined by each individual."  The decision, furthermore, referred to abortion as a "therapeutic intervention." The denial of such an intervention is a denial of a woman's right to health, the Court said. 

The case is also important in that it had to overcome the procedural challenges of an amparo proceeding. An amparo proceeding is meant as a guarantee of an individual's Constitutional rights and can generally only be brought under particular circumstances once all means of appeal have been exhausted. Essentially, the purpose of amparo suits is "to stop or reverse an unjust ruling."

In Mexican case law, the amparo suits tend to be interpreted quite narrowly, limiting its availability in denial-of-abortion cases, since the resolution of the lawsuit nearly always takes significantly longer than the duration of a full-term pregnancy. 

Here, the plaintiff had already successfully sought her abortion in Mexico City, and the district court in Mexico held that the suit should not reach the merits, because "the subject matter of the government action being challenged ceased to exist" once the plaintiff obtained her abortion. 

The Mexican Supreme Court, though, on appeal, applied the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to find that it must adopt a more liberal interpretation of the bounds of this amparo suit in order to account for the disparate impact of the apparently "gender-neutral" provisions allowing for such lawsuits. The Court found that denying Jane Doe's case based on the procedural limitations of amparo alone would "hinder women's right to access justice in practically everything related to pregnancies, including their termination." 

While the Court did not address the interplay with the Mexican Criminal Code and General Health Law as it related to abortion services and focused primarily on the implementation of the General Health Law, many abortion-rights activists consider this ruling a progressive step forward for the country. 

Planned Parenthood Awarded More Than $2 Million in Lawsuit Over Secret Evidence

New York Times (Nov. 15, 2019): Planned Parenthood Awarded More Than $2 Million in Lawsuit Over Secret Evidence, by Sabrina Tavernise:

On Friday, a jury in San Francisco found that the Center for Medical Progress (CMP) violated the federal Racketeer Influenced and Corrupt Organizations Act and awarded punitive and compensatory damages of $2.3 million. In 2015, the organization's leader David R. Daleiden and Sandra Merritt created a phony tissue procurement company and used false identities to meet with Planned Parenthood employees.  Daleiden secretly taped the meetings and posted deceptively edited videos. The jury found CMP, Daleiden and Merritt committed fraud, trespass, and made illegal recordings and breached contractual confidentiality provisions.  The jury found that Planned Parenthood was entitled to $469,361 in compensatory damages and $870,000 in punitive damages.  Under RICO, compensatory damages are tripled.

Daleiden and Merritt argued that they were undercover journalists.  However, the district judge in the case ruled that journalism is not a defense for the illegal acts of fraud, trespass and secret recording. 

Trump's DOJ Retreats From SCOTUS Fight Over Undocumented Teens, Abortion

Law.com (Nov. 8, 2019): Trump's DOJ Retreats From SCOTUS Fight Over Undocumented Teens, Abortion, by Marcia Coyle:

Earlier this week, the Trump Administration decided not to ask the Supreme Court to review an injunction blocking an Office of Refugee Resettlement  (ORR) policy that prevented undocumented minors from having access to an abortion while in government custody.  The Supreme Court had granted the Department of Justice two extensions of time to seek review, but in the end the DOJ did not file a petition by its Nov. 8 deadline.

The case, Azar v. Garza, gained attention during Justice Brett Kavanaugh's confirmation hearings because of a dissent he wrote from a D.C. Circuit decision upholding an order instructing the ORR to allow the named plaintiff in the case to obtain an abortion. If the Supreme Court had taken the case, Justice Kavanaugh would probably have recused himself.

 In June, the D.C. Court of Appeals affirmed a lower court decision certifying a class of pregnant unaccompanied minors in government custody and issuing the preliminary injunction. 

Judge Voids Trump-Backed 'Conscience Rule' for Health Workers

The New York Times (Nov. 6, 2019): Judge Voids Trump-Backed 'Conscience Rule' for Health Workers, by Benjamin Weiser and Margot Sanger-Katz: 

The Trump administration's "conscience rule" aimed to provide a way for health care providers to refuse to assist with abortion or other medical procedures on the basis of their religious or moral beliefs. The rule furthermore would've empowered these providers to refuse to give patients seeking care any referral to a willing provider. The rule attempted to coalesce dozens of separate laws, including those related to abortion and end-of-life care, into a singular framework.

It was scheduled to go into effect later this month, but a federal judge on Wednesday, November 6 voided the rule in a 147-page opinion. In his decision, Judge Paul A. Engelmayer said that the Department of Health and Human Services (HHS) did not have the authority to implement much of the rule. He further found that the HHS's purported purpose behind the rule was "factually untrue."

The agency claimed that the rule was meant to address an alleged "significant increase" in conscience complaints received by HHS--that is, complaints by health care workers who wished not to perform or participate in certain procedures. Judge Engelmayer, though, found that of the 358 complaints HHS claimed to receive during the identified period, only about 20 were true, unique, and relevant to the law at issue.

Opponents of the rule, including Planned Parenthood, one of the plaintiffs in the case, lauded the decision, saying it prevented the Trump administration from "providing legal cover for discrimination." 

In addition to Planned Parenthood, the other plaintiffs included 19 states, three cities, a county, and an additional reproductive health care provider. This was only one of several parallel cases filed throughout the country.

HHS and the Justice Department are reviewing the decision as they consider whether to appeal.

UN Human Rights Expert Recognizes Obstetric Violence as a Human Rights Violation

Reproductive Rights Prof Blog (Nov. 12, 2019): UN Human Rights Expert Recognizes Obstetric Violence as a Human Rights Violation by Lara Russo:

On October 5^th, 2019, the United Nations Special Rapporteur on violence against women, its causes and consequences presented a report to the UN General Assembly that looked at obstetric violence globally. The report entitled, “A Human Rights-Based Approach to Mistreatment and Violence Against Women in Reproductive Health Services with Focus on Childbirth and Obstetric Violence,” marks the first time an international human rights body has identified obstetric violence as a violation of human rights.

The term "obstetric violence" is widely used in South America, though is not commonly used in the international human rights community as of yet. The term broadly refers to mistreatment and violence experienced by pregnant people during facility-based childbirth. Internationally, violence against women is defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” 

The report details the numerous ways that women’s human rights can be violated in the birth context including: forced or non-consensual procedures, torture or cruel and inhuman or degrading treatment from use of restraints or lack of anesthesia during painful procedures, use of medically unjustified procedures, and violations of privacy, confidentiality, humiliation and harassment by health care providers.

Informed consent is highlighted in the report as a fundamental human right that can act as a safeguard against obstetric violence. Pregnant people are frequently denied their right to make informed decisions about their care during childbirth, which the report identifies as a human rights violation. Examples of violation of informed consent include presentation of consent forms to a pregnant person while in labor when it is difficult or impossible to understand the forms or formulate questions about treatment and when a doctor makes decisions on behalf of a pregnant person because the doctor’s medical knowledge is deemed superior to a woman’s entitlement to information and autonomous decision-making. 

The United States was explicitly criticized in the report for the common usage of non-consensual procedures and restraints of pregnant people during birth. In the U.S. it is legal in many states for doctors and medical students to perform pelvic exams on unconscious women who are under anesthesia for another procedure, who do not require a pelvic exam, and who have not explicitly consented to one. Despite recent reforms, pregnant people who are incarcerated in prison, jail, and immigration detention continue to be shackled and restrained during labor, delivery, and the post-delivery recovery period. The Committee Against Torture also has expressed concern about the shackling of incarcerated pregnant people in the U.S.

In addition to the obstetric mistreatment in the United States highlighted in the report, other forms of violence and mistreatment also occur. A recent study found that 1 in 6 pregnant, laboring, and postpartum women in the United States experienced mistreatment by medical providers.  This number rose to 1 in 3 when narrowed to deliveries in hospitals rather than freestanding birth centers or at home and disparately impacts black women and people of color. This mistreatment includes being yelled at or scolded, ignored or refused assistance when asking for help, being coerced into interventions, such as induction or epidural, and threatened with having treatment withheld.

Among the recommended actions to address the issue of obstetric violence, the Special Rapporteur includes increased budgetary resources devoted to quality reproductive health care, ensuring professional accountability and sanctions by professional associations in cases of mistreatment. The report recommended addressing intersectional discrimination or compound stereotypes stating that

Some women experience intersecting forms of discrimination, which have an aggravating negative impact, and gender-based violence may affect some women to different degrees, or in different ways; appropriate legal and policy responses are needed in this regard.

One’s experience of intersectional discrimination or compound stereotypes can increase the likelihood of experiencing obstetric violence. The United States could do better in all of these realms.  

The position of Special Rapporteur on violence against women, its causes and consequences was created in 1994 as a means of integrating the rights of women into the human rights mechanisms of the United Nations. The mandate of the special rapporteur is to seek and receive information on violence against women, recommend ways in which to eliminate such violence, and work collaboratively with the other United Nations humans rights mechanisms.