Saturday, February 29, 2020
Mother Jones (Feb. 27, 2020): The Supreme Court Could Place an Impossible Burden on Women Fighting for Abortion Rights, by Becca Andrews and Jessica Washington:
Mother Jones reporters Becca Andrews and Jessica Washington describe the potential impact of Louisiana'a claim that doctors lack standing to challenge abortion regulations that will be considered by the Supreme Court in June Medical Services v. Russo next week. Since the 1976 case Singleton v. Wulff, the Supreme Court has allowed abortion providers to file lawsuits challenging abortion restrictions rather than forcing pregnant women to bring the suits on their own behalf. As a practical matter a decision that doctors lack standing would make it more difficult to quickly challenge unconstitutional legislation and impose great hardship on women who seek an abortion.
“It’s almost impossible to imagine that an individual patient…would divert the resources required to litigate the case away from the challenges of her own personal life, to vindicate the rights of other women in order to prevent the law from going into effect,” says TJ Tu, a lawyer representing June Medical, the Louisiana abortion provider, on behalf of the Center for Reproductive Rights.
While Roe v. Wade was brought by a pregnant woman, Norma McCorvey, the article suggests that it would be riskier for a woman to challenge an abortion restriction today given that the "inescapable gaze of the internet brings risks of harassment and doxxing." McCorvey herself was not able to benefit from the court's holding; she gave birth while the case was being litigated and was thrust into a harsh spotlight that she did not want, later becoming an anti-abortion crusader.
Attacking doctors' standing also helps support an anti-abortion message that doctors who provide abortions are not acting in their patients' best interests.
Mary Ziegler, a professor at Florida State University who studies the history of abortion law, explains that the approach calls into question the intentions of abortion providers. “The general argument is that abortion providers don’t have patients’ best interests in mind,” Ziegler says. “If the court accepts that argument, it will say a lot about the court’s willingness to buy arguments that abortion is bad for patients or bad for women.”
Oral argument in June Medical is scheduled for next Wednesday.
Friday, February 14, 2020
February 13, 2020
Temple's Public Health Law Research Center has published data on abortion laws in effect in the 50 states from December 1, 2018 to December 1, 2019. The interactive database provides information about 15 types of abortion laws including: abortion bans, TRAP regulations, insurance restrictions, refusal to provide abortions, abortion advertising and many other types of restrictions. In addition to statutes and regulations the data released also tracks court cases.
Some of the developments in 2019 captured in the database include:
- Five states enacted laws banning abortion based on gestational age, including a law in Alabama that bans virtually all abortions throughout pregnancy. Four have been challenged and blocked by courts. The Louisiana law will only take effect if a similar Mississippi ban, currently blocked, is allowed to take effect.
- Four states — Arkansas, Kentucky, Missouri, and Utah — enacted targeted “reason-based” bans that prohibit abortion based on the pregnant person’s reason for seeking an abortion. These reasons can include fetal disability or anomaly, Down syndrome, or the race or sex of the fetus.
- West Virginia passed a new law prohibiting the use of telemedicine for medication abortion, bringing the number of states with this restriction to nine.
- There were 37 court challenges to abortion bans in 2019 that violated constitutionally established reproductive rights.
The database was developed by the Policy Surveillance Program of the Center for Public Health Law Research in collaboration with the Guttmacher Institute, Resources for Abortion Delivery (RAD), American Civil Liberties Union (ACLU), Center for Reproductive Rights (CRR), National Abortion Federation (NAF), and Planned Parenthood Federation of America (PPFA). It is available on lawatlas.org.
Monday, February 10, 2020
Rebecca Cook and Joanna Erdman's co-authored article was recently published in a special issue of Best Practice & Research Clinical Obstetrics & Gynaecology. The abstract follows.
Joanna N. Erdman and Rebecca J. Cook, "Decriminalization of abortion – A human rights imperative," Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 11-24.
Decriminalization of abortion is the removal of abortion from the criminal law. This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.
Human rights require:
--- the withdrawal of punitive abortion measures,
--- access to abortion, at least on grounds of life, health, sexual crime, and fetal impairment,
--- timely access to information about the pregnancy and grounds for its possible termination, written reasons for denials, and review mechanisms for denials, and
--- that abortion services be available to all, irrespective of their specific circumstance.
Wednesday, February 5, 2020
February 5, 2020:
Over 150 organizations have issued a joint statement calling on Mike Pompeo to rescind a regulation that makes it tougher for pregnant people to visit the U.S. on tourist visas, which will predominantly impact travelers from Asia, Africa and Latin America. The Trump administration asserts that the regulations are aimed at cracking down on "birth tourism."
According to the Wall Street Journal:
The new rules direct consular officers in foreign embassies to deny tourist visas, known as B visas, to any pregnant woman they believe is looking to travel to the U.S. to give birth. It will be the responsibility of the pregnant woman to convince officers she wants to visit the U.S. for a primary reason other than to give birth.
Because the U.S.'s Visa Waiver Program enables most citizens from European countries and wealthy Asian countries (Japan, Singapore, South Korea and Taiwan) to enter the U.S. for 90 days without a visa, the National Asian Pacific American Women's Forum, the National Latina Institute for Reproductive Health and over 150 other organizations that work on immigration, reproductive health, rights and justice, workers' rights, civil liberties and human rights have criticized the regulations as "thinly veiled racist and xenophobic attacks on the health, dignity, and well-being of pregnant people in other, largely non-European countries and immigrant women of color and their families."
Another problem with the regulations is that they give consular officials significant discretion, and decisions are virtually non-reviewable. Officials can deny visas if "they have reason to believe [the individual] intends to travel for [the purpose of obtaining citizenship for the child]." The Wall Street Journal quoted a senior state department official who said that "[v]isual cues can be enough for an officer to ask questions about pregnancy," but officers "won’t use pregnancy tests."
The joint statement criticizes the regulations for opening the door to racial and gender profiling, body shaming" and "invasive and coercive questioning." Last month, a woman boarding a flight in Hong Kong to the U.S. island of Saipan was forced to take a pregnancy test before boarding the plane after she was told that the test was required for women "observed to have a body size or shape resembling a pregnant woman."
Because the rule constitutes a "substantial change in policy" without "any clear national security rationale," leading Democratic Senators have called for suspension of the rule until additional information is obtained. The letter notes that the State Department failed to provide support for its “unsubstantiated claims of so-called ‘birth tourism’ often advanced by nativist, restrictionist groups and provided no data corroborating the existence of a widespread problem or national security risk.” The letter also expressed concern that "Department officials were unable to explain how consular staff would implement this sensitive policy without discriminating against pregnant women, or impacting visitor visa applicants traveling to the United States for medical treatment."