Tuesday, August 10, 2021
By Kelly Folkers (Aug. 10, 2021)
As the COVID-19 pandemic continues, increasing numbers of patients are seeking care through telemedicine, allowing them to communicate with their doctors and be prescribed medicines without leaving home. Access to abortion medication is a part of this trend, with more pregnant people seeking to terminate early pregnancies by requesting access to medication they can self-administer at home. Despite the FDA’s decision earlier this year not to enforce a previous requirement that abortion medications be administered in person, access to medication-induced abortion remains vastly inequitable as conservative state legislatures target the practice.
Current Food and Drug Administration (FDA) regulations on abortion medication officially require that the first dose be administered in a healthcare setting or under the supervision of a provider specifically certified to prescribe the medication. In 2020, the ACLU filed a lawsuit on behalf of the American College of Obstetricians and Gynecologists (ACOG) challenging the in-person dispensing requirement, which resulted in a nationwide injunction preventing the FDA from enforcing the rule. But the Supreme Court lifted the injunction in January 2021 and held, in a 6-3 decision, that the district court should have deferred to the FDA’s expertise, avoiding the question of whether the rule imposed an undue burden on the constitutional right to abortion. After President Biden took office, the FDA announced in April 2021 that it would not enforce the in-person dispensing requirement for the duration of the COVID-19 pandemic.
The agency is now considering permanently removing the in-person dispensing requirement. But as access to abortion hangs in a precarious balance as the Supreme Court prepares to hear a direct challenge to Roe v. Wade later this year, have passed laws in 2021 targeting medication-induced abortions.
There are two types of abortion: surgical and medication. While a surgical abortion is a medical procedure that must be performed in a clinic or medical office, the procedure for most medication-induced abortions requires that patients take two medicines, mifepristone and misoprostol, at least 24 hours apart, respectively. ACOG has stated in its most recent guidance on medication-induced abortions, that patients can safely and effectively take abortion medications at home. But the FDA issued a Risk Evaluation and Mitigation Strategy (REMS) for mifepristone when it was approved in 2000, requiring that the medication be ordered, prescribed, and dispensed under the supervision of a health care provider who is specifically certified to administer it. The agency issues REMS to “reinforce medication use behaviors and actions that support safe use of that medication.” While there have been some reported adverse events, including a handful of deaths, associated with use of mifepristone, the medication is widely considered to be safe and effective, with over 3.7 million patients having been prescribed the drug since its approval.
Though the FDA announced that it would not be enforcing the REMS on mifepristone during the pandemic, even before the pandemic, the restriction had long frustrated abortion rights advocates, who believe it is too restrictive and politically motivated. In 2019, former FDA Commissioner Dr. Jane Henney argued in the New England Journal of Medicine that the restrictions on distribution of mifepristone made at its approval in 2000, before the drug was widely used and in the United States and additional safety and efficacy data collected, may no longer be appropriate.
Despite ACOG’s assertion that the in-person dispensing requirement has no medical benefit for patients, conservative state legislatures have used the Supreme Court’s decision to target medication-induced abortions. Montana has effectively banned telehealth for abortion. Ohio has a similar law in effect, which is being challenged by Planned Parenthood and other advocacy groups in court. Indiana not only required that the first dose of medication be administered in the presence of a healthcare professional, patients must be advised that their abortions can be reversed with progesterone, which is not scientifically supported. The law has since been blocked by a federal judge. At least 20 states prevent telemedicine appointments for abortion pill prescriptions, and more than 30 require that physicians must write the prescriptions, rather than nurse practitioners or physician assistants who are otherwise able to prescribe medication.
Though laws limiting access to medication-induced abortion continue to threaten reproductive rights, there is hope that under the new Democratic Administration, the FDA will end the restrictive in-person dispensing requirement.
Tuesday, June 1, 2021
By K.A. Dilday (June 1, 2021)
On Friday, President Joe Biden released a proposed budget for 2022. Reproductive rights advocates hailed it for the historic exclusion of the Hyde Amendment: It is the first White House budget in decades to exclude the 1976 Amendment prohibiting the use of federal funds for abortion.
The exclusion is largely symbolic: The Hyde Amendment can only be repealed by lawmakers, and Democrats who support repealing it don’t hold sufficient majority in the Senate to do so. But it is a turnaround for Biden who voted to pass the Amendment as a senator and continued to back it for many years. With this latest step, President Biden is signaling that his administration will support the right of reproductive freedom for all women.
Thus, some reproductive rights activists are cautiously optimistic despite the looming specter of the Supreme Court’s hearing next term of a case that could potentially eviscerate the protections of Roe v. Wade. But there is a group of women in the United States that has suffered disproportionately under the Hyde Amendment and therefore to whom symbolic gestures mean little.
Although all low-income women bear the weight of the Amendment’s restrictions as it affects recipients of the federal-state healthcare program Medicaid, non-elderly American Indian and American Native women use public health services at a higher rate than any other ethnicity according to the healthcare research foundation KFF.
While some states have a workaround for abortion services provided by Medicaid—using exclusively state funds rather than federal—many of the U.S. Indigenous population use the federally funded Indian Health Service (IHS) which operates hospitals and outpatient facilities in addition to providing other support services. Approximately 1.9 million American Indian and Alaska Native women living on or near reservations receive care at those facilities and through linked health service providers.
The Hyde Amendment did not technically apply to the Indian Health Services until 2008: As noted by Andie Netherland in the American Indian Law Review, “...the Hyde Amendment provided that ‘[n]one of the funds contained in [the] Act’ could be used for abortions, [but] the Amendment did not apply, at that time, to the funds allocated to the Indian Health Service through a different act.” In 2008, the Senate expanded the Hyde Amendment’s application to the Indian Health Service.
Despite its not being legally bound by the Hyde Amendment, the Indian Health Service adhered to it in years preceding 2008. A 2002 report by the Native American Women's Health Education Resource Center (NAWHERC) found that between 1981 and 2001, only 25 abortions had been performed by IHS units. The report also cites a 1996 memo from the IHS director clarifying that the IHS would only provide abortions in the case of rape, incest, or limited circumstances when the mother’s life was in danger, the three exceptions permitted under the Hyde Amendment that were pushed through in 1993 under the Clinton Administration.
Reproductive rights activists say that the difficulty of obtaining an exception under the Hyde Amendment is particularly hard on Native American women based on findings that Indigenous women are 2.5 times more likely to report experiencing sexual assault than other races, and one in three Native American women reports having been raped. And, the American Addiction Centers compiled data from the 2018 National Survey on Drug Use and Health indicating that Indigenous Americans have the highest rates of alcohol, marijuana, cocaine, inhalant, and hallucinogen use disorders compared to other ethnic groups.
A recent federal case highlights the particular burden that these challenges and the Hyde Amendment’s restrictions to reproductive rights place on Indigenous women. In the precedent-setting United States v. Flute (2019), the Eighth Circuit reinstated an indictment dismissed by the District Court for South Dakota-Aberdeen against a young Native American woman for manslaughter, after prenatal drug use resulted in the death of her baby four hours after birth. As Eighth Circuit Judge Steven M. Colloton noted in his dissent: “According to the United States Attorney, the government has never before charged a mother with manslaughter based on prenatal neglect that causes the death of a child.”
Flute gave birth on the Lake Traverse Reservation of the Sisseton Wahpeton Oyate Tribe, which is under federal jurisdiction. Her case was characterized by the Harvard Law Review as escalating “to the federal level the state judicial trend of using broad interpretations of statutes designed for other purposes to criminalize prenatal conduct.” As Judge Colloton also wrote in his dissent: "No federal statute enacted after 1909 has expanded the manslaughter statute to encompass a mother’s prenatal neglect." In an article about the Flute case in the most recent edition of the American Indian Law Review, Andie Netherland noted that pregnant Indigenous women who face addiction may face criminal prosecution for involuntary manslaughter “more frequently than non-Indian women due to the unavailability of abortion services within the Indian Health Service.”
For these reasons, Native-American reproductive rights activists say that even post Roe v. Wade, the immediacy of their fight for reproductive justice and self-determination never changed. A 2019 article in Indian Country Today noted “the new abortion laws don’t ever have to be implemented and the Supreme Court doesn’t have to overturn Roe to make abortion inaccessible for Native women; restrictions are nothing new. For Native women, the lack of access to abortions has been real for years.”
The looming loss of reproductive rights feared by many in the United States would not be a loss but a reiteration of the status quo for many Indigenous women. In the absence of real, tangible change, the symbolic exclusion of the Hyde Amendment does not give Indigenous women much cause for celebration.
Tuesday, May 25, 2021
By Kelly Folkers (May 25, 2021)
Last week, the Supreme Court agreed to hear a case that poses a direct challenge to the right to seek an abortion in the United States. It’s a test case that has been expected by reproductive rights advocates since the Supreme Court’s rightward lurch during Donald Trump’s four years in office: Trump appointed three conservative justices, all of whom have signaled willingness to roll back reproductive rights. If the Court significantly alters abortion jurisprudence or overturns Roe v. Wade (1973) entirely, reproductive rights will evaporate in many states, leaving millions of women and people who can get pregnant without a fundamental right to their bodily autonomy.
In Dobbs v. Jackson Women’s Health Organization, the Court has agreed to consider whether all bans on pre-viability abortions are unconstitutional. Although pre-viability bans on abortions are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, the rightward swing of the federal judiciary has emboldened state legislatures to pass pre-viability bans to test the courts. Just this past month, Texas Governor Greg Abbott (R) signed into law a bill banning abortion as early as six weeks—before many people know they are pregnant. South Carolina enacted a similar law in February. Texas and South Carolina join more than a dozen other states with similar laws, many of which have been held unconstitutional and enjoined by court order.
Dobbs involves a Mississippi law called the Gestational Age Act, which prohibits abortions if the “probable gestational age” of the fetus is more than 15 weeks. While there is dispute within the medical community regarding the exact age at which a fetus becomes viable and states vary in their definition of fetal viability (i.e., the fetus’s ability to survive outside the uterus), most experts agree that it is clinically improbable for a fetus to be viable under 22 to 24 weeks. Notably, the Act does not contain exceptions for rape or incest, allowing exceptions only for medical emergencies or severe fetal abnormalities. Mississippi’s sole abortion provider filed suit within hours of the law being enacted, and for now, the Fifth Circuit Court of Appeals has affirmed the U.S. District Court for the Southern District of Mississippi’s ruling to permanently enjoin the law.
Though the Supreme Court is more conservative than it has been in decades, abortion jurisprudence has long been settled in the United States: The state cannot place an undue burden on a pregnant person’s right to have an abortion pre-viability. In 1992, the Supreme Court reaffirmed Roe’s “central holding” that pregnant people have a protected right to seek an abortion in Planned Parenthood v. Casey. Casey adopted the “undue burden” test, which provides that state action violates the right to an abortion if it has the purpose or effect of imposing a substantial obstacle to a person seeking to abort a non-viable fetus. Although Casey permits regulation of abortion before viability, it does not question that bans on abortions before fetal viability are a violation of the Due Process Clause of the Fourteenth Amendment to the U.S Constitution.
Since Casey, Supreme Court decisions have focused on how to apply the undue burden test to laws that regulate the provision of abortion. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down a Texas law requiring that abortion providers have admitting privileges at nearby hospitals and that facilities where abortions are performed meet the requirements for ambulatory surgical centers. The Court found that the requirements placed a substantial obstacle in the path of people seeking abortions and there was no evidence showing that either requirement made abortions safer. Balancing the law’s benefits and burdens, the Court held that the law imposed an undue burden. Even more recently, in 2020, the Supreme Court struck down an almost identical Louisiana admitting privileges law in June Medical Services v. Russo. The outcome of the cases was similar, but a notable difference was the justices who voted with the majority and their reasoning. In 2016, Chief Justice John Roberts was a dissenting justice, but in 2020 he added the crucial fifth vote to strike down the law in a separate concurring opinion. Justice Roberts stated that his respect for precedent motivated his decision to vote with the Court’s liberal bloc in June Medical, but he stood firm in rejecting the balancing test the Court applied in Whole Woman’s Health.
After June Medical, it remains uncertain what test the Court will apply to determine if restrictions on the provision of abortion impose an undue burden. But Dobbs presents the court with a different issue that goes to the heart of Roe’s central holding: whether a law banning abortion before viability can ever be constitutional.
Some constitutional law experts predict that if the Court holds that bans on pre-viability abortions are permissible, it will effectively allow states to outlaw abortion. Indeed if Roe v. Wade is reversed, more than 20 states have laws banning abortion at various points in fetal viability that are designed to be triggered automatically, enacted swiftly, or dormant only because of Roe, according to Nancy Northup, the president of the Center for Reproductive Rights. These laws would make abortions difficult or impossible to obtain in many states.
A decision in Dobbs is not expected until the spring or summer of 2022, but some state legislatures are already taking action to codify protections for pre-viability abortions if Roe v. Wade is overturned. Some states are going even further: In Oregon, Governor Kate Brown (D) recently signed the Reproductive Health Equity Act, which requires private insurers to cover abortions with no out-of-pocket costs. Similar bills are pending in New Jersey and Virginia. These bills go beyond what the federal Constitution guarantees because they obligate public and private insurers within their states to pay for abortion; the Supreme Court has previously held in Maher v. Roe and Harris v. McRae that state and federal payers, respectively, are not constitutionally obligated to cover abortions.
Until the Supreme Court hands down what may be a landmark decision for reproductive rights, people seeking abortions retain their right to do so, but just barely.
Tuesday, April 6, 2021
By Shelby Logan (April 6, 2021)
In 2008, Manuela, a 33-year-old Salvadoran, had a miscarriage at home. When she lost consciousness, concerned family and friends took her to a hospital in San Francisco Gotera, a small town in eastern El Salvador. When Manuela was discharged some days later, instead of returning home, she was taken to jail.
Manuela (the pseudonym used to protect her family’s identity) was accused of having an abortion and charged with aggravated homicide.
She had been reported to the police by hospital staff. Because her pregnancy occurred outside of marriage, they believed Manuela, a mother of two young children, must have tried to abort. Manuela, who could neither read nor write, was not provided legal counsel while being questioned. After a process in which she was represented by three different public defenders, Manuela was sentenced to 30 years in prison. While the doctors focused on criminalizing her obstetric emergency, they missed a large mass in Manuela’s neck and, while in prison, she was diagnosed with cancer. She died behind bars two years later.
On March 10, 2021, the Inter-American Court of Human Rights heard the first arguments in Manuela y Otros v. El Salvador, marking the first time a Latin American country's anti-abortion law and its effect on women's health and human rights, have been challenged in an international court.
Manuela’s story had motivated an international slate of activists who brought her case to the Inter-American Commission on Human Rights in 2012. Finding that Manuela’s fair-trial rights had been violated, the Commission referred the petition to its judicial affiliate, the Inter-American Court of Human Rights. Almost nine years to the day after they brought Manuela’s case to the Commission, last month, an international coalition of groups argued before the Court for reparations for Manuela’s family and asked that the Court compel the Salvadoran state to take public responsibility for not guaranteeing the human right of Manuela and others like her to life and health.
El Salvador has among the world’s most strict abortion law, outlawing the procedure entirely. This includes special instances where a child was conceived by rape or incest or where the health of mother or child is at risk. In the last 20 years, at least 181 women who experienced obstetric emergencies were prosecuted for abortion or aggravated homicide just like Manuela.
Activists continue to express that a total ban on abortion further develops a culture of systemic discrimination and gender-based violence, one that disproportionately affects women in vulnerable situations. They are arguing that El Salvador’s mandatory reporting of obstetric emergencies to the police is a violation of women’s right to privacy and health, a human rights violation.
The plaintiffs have asked the Court to hold El Salvador accountable for laws that deny and criminalize reproductive health, and cause violence against women who suffer obstetric emergencies.
The Court’s decision, due to be released this year, is expected to create jurisprudence within the Inter-American Human Rights system. Including El Salvador, 20 states in Latin America and the Caribbean have recognized the Court’s jurisdiction. The Court can require the payment of reparations to victims but, more significantly, it can order structural and normative changes to State practice.
It is activists’ hope that the Inter-American Court of Human Rights' decision becomes a path for justice and hope for all women in Latin America and the Caribbean who are criminalized for their obstetric and reproductive processes and needs.
Tuesday, March 2, 2021
By Fallon Parker (March 2, 2021)
In the wake of Amy Coney Barrett’s fast-tracked ascendance to the U.S. Supreme Court last fall, headlines have spotlighted the flurry of anti-abortion legislation making its way through state legislatures in anticipation of a receptive Supreme Court. However, in the four months since Barrett's confirmation, several states have introduced measures that would shore up reproductive rights and protect them against federal assault.
This legislation is vital given the conservative majority on the Supreme Court and the 17 pending abortion cases that could be argued before the court in 2022.
New Mexico made headlines on February 19th when state legislators voted to repeal a 1969 law that banned most abortions in the state after a failed 2019 attempt to rescind it. Although the statute has been dormant since 1973 when Roe v. Wade was decided, it could go back into effect if Roe is overturned. The statute mandated hospital board approval for medical termination of a pregnancy and restricted abortion to situations of incest, rape reported to the police, grave medical risks to the pregnant person, or indications of grave medical defects in the fetus. Governor Michelle Lujan Grisham (D) signed the repeal bill on February 26th, making it law as of that date.
In Minnesota, two Democratic state legislators, Representative Kelly Morrison, and Senator Jennifer McEwen, introduced the Protect Reproductive Options (PRO) Act on January 21st. The bill would establish the fundamental right of Minnesotans to make individual decisions about reproductive health care, including abortion; recognize a fundamental right to privacy with respect to personal reproductive decisions; and prevent the state from interfering with reproductive decisions. According to Rep. Morrison's press release, this legislation is in response to the nationwide attack on abortion rights and the possibility of a Supreme Court challenge to Roe. However, Minnesota’s state legislature is under split control, with Democrats controlling the House of Representatives and Republicans controlling the Senate, which makes it unlikely the legislation will pass.
In Virginia, after years of organizing, in 2019 Democrats gained control of both state chambers for the first time since 1996. The Senate quickly passed the Reproductive Health Protection Act in April of 2020 repealing a number of medically dubious restrictions on abortion. More recently, the Senate and House each passed a parallel bill to repeal the ban on abortion coverage for people on the state’s healthcare exchange. This legislation is expected to be signed by Governor Ralph Northam (D) in April. Similar bills mandating healthcare abortion coverage have recently been introduced in Arizona, Hawaii, California, and New Jersey, although only Virginia’s has been brought to a vote.
Massachusetts--a historically liberal state--acted quickly to codify abortion rights following Barrett’s appointment. In late 2020, the state legislature expanded access to abortion beyond 24 weeks in cases of fatal fetal anomalies, and lowered the age of consent from 18 to 16. Governor Charlie Baker (R) vetoed the bill, but the Massachusetts legislature easily overrode the veto by a vote of 107-46 in the House and 32-8 in the Senate making it law as of December 29, 2020.
Overall, since Barrett's confirmation, at least 13 states have introduced measures to protect the right to an abortion. As advocates face what could be a long battle over reproductive rights in federal courts, the importance of state-level organizing and the resulting legislation could prove paramount in the fight for abortion access. If a challenge to abortion reaches the Supreme Court, the disparity in abortion access among states could return the country to pre-Roe v. Wade conditions. If that happens, a pregnant person's access to reproductive choices will depend entirely on the political makeup and policy priorities of their state legislature.
Saturday, November 23, 2019
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.
November 23, 2019 in Abortion, Abortion Bans, Anti-Choice Movement, Current Affairs, In the Courts, Politics, State and Local News, State Legislatures, Supreme Court, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0)
Friday, November 22, 2019
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.
Wednesday, November 13, 2019
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.
November 13, 2019 in Abortion, Anti-Choice Movement, Culture, Current Affairs, In the Courts, Medical News, Politics, President/Executive Branch, Reproductive Health & Safety, Women, General | Permalink | Comments (0)
Thursday, October 31, 2019
The Washington Post (Oct. 29, 2019): Alabama abortion law temporarily blocked by federal judge by, Ariana Eunjung Cha and Emily Wax-Thibodeaux:
A federal district court in Alabama blocked the state's extremist abortion ban, passed in May, earlier this week. The law would almost entirely proscribe the termination of a pregnancy in Alabama, including in cases of pregnancy resulting from rape or incest. The single exception to to the ban would be in the case of serious risk to the life of the pregnant person.
Alabama state representative Terri Collins--the author of the bill--has framed the law as a direct challenge to Roe v. Wade, and stated in response to the preliminary injunction that this decision "'is merely the first of many steps'" in the anti-abortion movement's "effort to preserve unborn life." Rep. Collins aims for challenges to the law to make it to the Supreme Court and called this week's ruling "both expected and welcomed" on the journey to SCOTUS.
Judge Myron H. Thompson, who penned the decision out of the U.S. District Court for the Middle District of Alabama, "wrote that it violates Supreme Court precedent and 'defies' the Constitution."
The Alabama law joins eight other states' blocked attempts at restricting abortion access unconstitutionally.
Monday, October 7, 2019
U.S. joins 19 nations, including Saudi Arabia and Russia: ‘There is no international right to an abortion’
The Washington Post (Sept. 24, 2019): U.S. joins 19 nations, including Saudi Arabia and Russia: ‘There is no international right to an abortion’, by Ariana Eunjung Cha:
The United States, in a statement delivered to the United Nations General Assembly (UNGA) on September 23 this year, rejected the use of the term "sexual and reproductive health and rights" throughout U.N. documents and in particular within the international Sustainable Development Goals. Health and Human Services Secretary Alex Azar delivered the statement and emphasized that international instruments should not promote "abortion as a means of family planning." He disputed that there is an international right to an abortion.
The U.S., one among 19 nations who joined in the statement, further emphasized that "[they] only support sex education that appreciates the protective role of the family in this education and does not condone harmful sexual risks for young people."
The Netherlands delivered a responsive joint statement on behalf of 58 countries rejecting the U.S. position and stressing "the need to uphold the full range of sexual and reproductive rights." Country representatives also took to Twitter to object to the U.S. statement, using the hashtag #SRHR (sexual and reproductive health and rights), explicitly embracing the language the United States aims to erase.
Many country representatives, along with civil society advocacy groups, underscore that on this issue of abortion the U.S. "align[s] with countries like Saudi Arabia and Sudan with poor human rights records." They also emphasize the problematic nature of the United States' campaign to persuade other countries to form a new coalition in support of these regressive policies, calling attention to the fact that these efforts put "unfair pressure on poor countries" dependent on U.S. aid.
The Trump administration worked hard leading up the General Assembly to recruit conservative governments to support its efforts to roll back sexual and reproductive health and rights across the board. This campaign could have devastating effects on adults and children who rely on international programs for basic health care, particularly prenatal and postpartum health care.
The United States-led campaign at the UNGA last week follows a similar effort directed at the World Health Organization (WHO) in which the U.S., Brazil, Egypt, Saudi Arabia, and several other states campaigned to reject the term "sexual and reproductive rights" from WHO policy, as Colum Lynch for Foreign Policy reports.
Fortune (Sept. 19, 2019): "A Doctor Who Prescribes Abortion Pills to U.S. Women Online is Suing the FDA. Is She Breaking the Law?", by Erin Corbett:
Dr. Rebecca Gomperts, a physician licensed to practice medicine in Europe, launched the website Aid Access in 2018 in order to meet the growing need for accessible abortion care in the U.S.
Patients seeking to end a pregnancy in its early stages through the use of the medications misoprostol and mifepristone can complete an online consultation form on Aid Access about their pregnancy and general health. Dr. Gomperts prescribes the medication to patients so long as they are "healthy, less than 10 weeks pregnant, and live within an hour's distance of a hospital in case of emergency."
Medical abortion is an FDA-approved method to end a pregnancy, and studies have found that independently managing an abortion using misoprostol and mifepristone pills is both safe and effective.
"There is no evidence that home-based medical abortion is less effective, safe or acceptable than clinic-based medical abortion,” reads one study from the World Health Organization (WHO).
The two pills work in combination to terminate a pregnancy in the first 12 weeks. Together, they are over 96% effective, and using misoprostol on its own is more than 80% effective in the first trimester.
Dr. Gomperts emphasizes that the science supports the safety of medication abortions, including those done entirely by the women seeking the abortion themselves (in some cases, women may go to a clinic to physically receive the medication; in others, like here, women are prescribed the medications remotely, which are then mailed to them). "All medical abortions are self-managed," though, Dr. Gomperts says. "Women that go to a clinic and get the pill and have their miscarriage at home—it’s exactly the same procedure if they get the pills online.”
In the wake of the confirmation of right-wing, anti-choice Supreme Court Justice Brett Kavanaugh, along with the slew of extreme state-level restrictions on abortion access in recent years, Dr. Gomperts found that patients reaching out to her were seeking her help not only because they wanted an abortion but because they didn't know where else to get help or even information on any local health services available to them.
Dr. Gomperts received inquiries from over 40,000 women between March 2018 and August 2019. She prescribed the two abortion medications to just over 7,000 of those persons. The majority of the requests came from women living in abortion-hostile states with strict laws, like Alabama, Georgia, and Mississippi. Dr. Gomperts has consulted with women in all 50 states.
While several states have laws that criminalize any self-managed abortions, all of these statutes "pre-date Roe, likely making them unconstitutional," Erin Corbett, author of the Fortune article, says. They've been applied against pregnant persons nonetheless.
On September 9th, Dr. Gomperts and her attorneys filed a lawsuit in federal court in Idaho against the FDA and other federal officials, claiming that they illegally confiscated "between three and 10 'individual doses of misoprostol and mifepristone' that Dr. Gomperts had prescribed to patients since March."
The FDA claims that her practice "'poses an inherent risk to consumers who purchase'" these medications.
Dr. Gomperts asserts several claims for relief under both the Constitution and the Administrative Procedure Act. Prosecuting Dr. Gomperts or her patients would violate their rights to liberty, privacy, and equal protection under the Fifth Amendment, the lawsuit claims.
Friday, September 20, 2019
Sept. 11, 2019 (Rewire.News):‘We Are Headed Toward a Public Health Crisis’: Title X Clinics Grapple With Trump’s ‘Gag Rule’, by Erin Heger:
The Trump administration recently introduced a 'gag rule' on recipients of Title X funding, which provides federal money for family planning services to low income individuals hroughout the country. The new rule prohibits clinics receiving Title X funding from referring their patients for abortion care. Clinics that provide abortion services will also have to physically separate abortion and Title X-approved services.
HHS Office of Population Affairs operates Title X by funding “grantees” (health care organizations, state health departments, or non-profits) that oversee the distribution of Title X funds to safety-net clinics and other sites to provide family planning services to low-income, uninsured, and underserved clients.
Because of the recently introduced restrictions, health care organizations and some states are choosing to opt out of receiving Title X funding altogether rather than attempt to comply. The most notable of rejections may be from Planned Parenthood, which announced last month that it was rejecting funding under the new guidelines. The organization's clinics serve 40 percent of the country's Title X patients, and there are concerns that other providers will struggle to take on the resulting predicted increase in patients. According to Guttmacher Institute, there will need to be an estimated 70 percent expansion in clinics' caseloads in order to make up for Planned Parenthood's absence.
Seven states have also opted out, but other states and health care organizations have decided to stay, for fear that clinics they fund will not be able to afford to stay open without the Title X money. Providers in Missouri, for example, are in large part continuing to accept funding. With previous restrictions on abortions leaving the state with only one abortion clinic, access to reproductive health care is extremely limited as is. "For the majority of Title X patients, their Title X provider is their only source of health care, particularly in small and rural communities," Audrey Sandusky of the National Family Planning and Reproductive Health Association told Rewire.News.
The second part of the gag rule requires that clinics somehow separate out their abortion services from their other functions. This is set to go into effect this coming March, but it's yet to be determined what hoops clinics will have to jump through to remain safely in compliance under these new standards. Many of the providers' plans submitted to the U.S. Department of Health and Human Services have not been approved as of yet. The largest of the Title X administrators, Essential Access Health, has had their plan approved, but its details have not been released.
Sandusky pointed out how low-income individuals already face serious barriers in their lives, and this new restriction makes it even more likely that they will go without care if they cannot go to a Title X provider. "That means they go without cancer screenings, STD testing and treatment, and HIV services. Given the uncertainty that exists across the country, we are headed toward a public health crisis." This certainly seems to be the case.
Tuesday, September 17, 2019
September 10, 2019 (NBC News): It just got a Little Easier for Low-Income Women in Texas City to Access Abortion Care, by Adam Edelman:
Last week, City Counsel members in Austin, Texas voted to include funding for low-income women to access abortion. This creative measure supports abortion access through funding services like travel to and from abortion clinics, lodging, and child care for women who need abortion procedures.
A Texas state bill enacted earlier this year, SB22, bans any Texas municipality from allocating public funding to groups that provide abortion care. However, the City Counsel's funding does not actually fund the procedure, sidestepping the restrictive legislation.
'Advocates of the funding told NBC News it would not violate any of Texas’ restrictive abortion laws. Rather, they explained, the bill would merely help low-income women who need abortion care navigate a complicated landscape.'
Current Texas law imposes a number of barriers that make obtaining an abortion more time consuming and costly. Texas law bans abortion after 20 weeks post fertilization and requires pregnant women in Texas to visit an abortion clinic twice, first to undergo a sonogram and then, after a 24 hour wait, to actually have the procedure. Additionally, all such costs must be paid out of pocket, as Texas law also prohibits private insurance from covering abortion care. The Austin law helps women pay some of the additional costs imposed on them by Texas law.
New York City Council recently approved a similar funding measure that allocated $250,000 to fund abortions for poor women who live in, or have traveled to New York City from the procedure.
Advocates of the Austin measure hope that this action can provide an example for blue cities in red states to creatively advance abortion rights in their own cities.
Thursday, September 12, 2019
Sept. 10, 2019 (CBS News): Medication abortion reversal is "devoid of scientific support," judge rules in North Dakota, by Kate Smith:
Legislators in North Dakota recently mandated physicians tell patients who are receiving medication abortions that the procedure may be reversed. North Dakota House Bill 1336 bases its text "on a pair of studies that have been contested by The American Medical Association and the American College of Obstetrics and Gynecology."
Judge Daniel Hovland, on Tuesday, September 10, issued a 24-page decision granting an injunction against the bill, which he said is "devoid of scientific support, misleading, and untrue." Further elaborating that:
'State legislatures should not be mandating unproven medical treatments, or requiring physicians to provide patients with misleading and inaccurate information...The provisions of [Bill 1336] violate a physician's right not to speak and go far beyond any informed consent laws addressed by the United States Supreme Court, the Eighth Circuit Court of Appeals, or other courts to date.'
The lawsuit against the Bill was filed by the American Medical Association and Red River Women's Clinic. Red River is North Dakota's only legal abortion provider. According to research conducted by the Guttmacher Institute, people seeking abortions in the state must, in addition to very likely traveling long distances to reach the clinic, "undergo a state-mandated 24-hour waiting period." Minors may not receive an abortion in North Dakota without notifying their parents, and the state limits the ways a private insurance provider may cover the procedure.
A separate North Dakota state law "requires physicians to tell patients that abortion terminates 'the life of a whole, separate, unique, living human being.'" The AMA and Red River suit also challenges this law, but the court has not yet addressed this claim, thus far only issuing the preliminary injunction against House Bill 1336.
September 12, 2019 in Abortion, Abortion Bans, Anti-Choice Movement, Fetal Rights, In the Courts, Mandatory Delay/Biased Information Laws, Medical News, Politics, State and Local News, State Legislatures, Targeted Regulation of Abortion Providers (TRAP) | Permalink | Comments (0)
Tuesday, September 3, 2019
HHS Threatens to Defund UVM Medical Center for Allegedly Failing to Protect Conscience Rights of Nurse Who Opposes Abortions
August 29, 2019 (Rewire News): HHS Launches Another Attach on Abortion Providers Under Guise of 'Conscience Rights," by Dennis Carter:
Rewire News reports that the Office of Civil Rights in the Department of Health and Human Services has accused the University of Vermont Medical Center of “intentionally, unnecessarily, and knowingly” scheduling nurses to assist with abortions “against their religious or moral objections." HHS Head Roger Severino claims that these alleged actions violate the Church Amendments, laws from the 1970s that protect the conscience rights of individuals to object to performing or assisting in abortion or sterilization procedures if it is contrary to their religious or moral beliefs. HHS has given the center 30 days to change its religious freedom policies or lose federal funding.
Friday, July 26, 2019
July 19, 2019 (Rewire.News): Another State Could Soon Insert Anti-Abortion Propaganda Into Public Schools, by Erin Heger:
Ohio--the only U.S. state without standardized health education--may soon require public schools to focus on the “humanity of the unborn child” in health education curriculum.
House Bill 90, introduced by the state's GOP legislature, infuses anti-abortion language into health and science materials for students and would restrict schools from providing any abortion-related information or referrals to students facing pregnancy. The legislature aims for school programs to thoroughly detail information about fetuses and gestation, promoting carrying any pregnancy to term.
In 2016, Oklahoma also introduced similar legislation (calling it the "Humanity of the Unborn Child Act"), however it has not yet been implemented in the state due to "budget constraints."
Both HB 90 in Ohio and Oklahoma’s Humanity of the Unborn Child Act state their intended purpose is an “abortion-free society.” However, not informing young people of all their options does little to prevent abortion and instead leaves people not knowing what to do or where to turn when they do face an unintended pregnancy, said Cameron Brewer, an educator with Planned Parenthood Great Plains.
“If we are restricting the information students have access, to then we are doing them a disservice as educators,” Brewer told Rewire.News. “My goal as an educator is to make sure my students have all the information they need to make the best decisions for them.”
Thursday, July 25, 2019
July 23, 2019 (Rewire.News): Telemedicine Abortion is Safe, No Matter What Anti-Choice Lawmakers Claim, by Auditi Guha:
A study released July 9 finds that outcomes for medication-driven abortion through telemedicine are comparable in-person medication abortion.
The results support the importance of telemedicine for reproductive health and safety particularly for those who cannot easily reach abortion clinics due to oppressively-restrictive anti-choice legislation.
Medication abortion has been legal in the United States for nearly twenty years and is supported by the American College of Obstetrics and Gynecologists, National Abortion Federation, and Planned Parenthood. The procedure uses a combination of mifepristone and misoprostol pills and the telemedicine aspect helps clinicians have a wider reach in authorizing and supervising the process through remote video conferencing.
Telemedicine medication abortions have often been provided in clinics where the licensed clinicians video conference in while the patient is in clinic with nurses or other professionals, but direct-to-patient telemedicine abortion services are growing. Most patients requesting these services live in abortion-hostile states where they cannot easily reach a clinic at all.
The anti-choice movement has responded by working to restrict access to telemedicine abortion as well as in-clinic abortion services. Legal bans or restrictions currently exist in Arkansas, Idaho, Mississippi, and Utah.
The recent study, though, "indicates that telemedicine abortion is 'a safe and effective way of ending an early pregnancy, with very rare complications' and can provide the same quality of health care patients receive at a health center," according to Dr. Julia Kohn, national director of research at Planned Parenthood Federation of America and the lead author of the study.
Kohn further says: "In many ways, this study does reaffirm what we already know: Medication abortion via telemedicine is safe and effective at ending an early pregnancy."
July 25, 2019 in Abortion, Abortion Bans, Anti-Choice Movement, Current Affairs, Medical News, Pregnancy & Childbirth, Pro-Choice Movement, Reproductive Health & Safety, Scholarship and Research, Science, State and Local News, State Legislatures, Women, General | Permalink | Comments (0)
Wednesday, June 26, 2019
Jun. 24, 2019 (The Guardian): Appeal court overturns forced abortion ruling, by Harriet Sherwood:
An appeals court in the UK overturned a recent decision by the court of protection in London, which had ordered a young pregnant woman to have an abortion against her wishes.
The pregnant woman is in her twenties and suffers from learning and mood disorders, such that her mental capacity is akin to that of a "six to nine-year-old child."
There is no public information as to how the woman got pregnant and a police investigation is ongoing. In the meantime, the woman--now 22-weeks pregnant--and her mother both wish for the pregnancy to continue and her mother intends to care for the child once born. A social worker agrees that the pregnancy should be allowed to continue.
Three medical professionals, including one obstetrician and two psychiatrists, with England's National Health Service initiated the legal challenges when they sought permission from the court to terminate the pregnancy.
The court that ordered the termination originally stated that its decision was in the best interests of the woman. The woman's mother, a former midwife, appealed the decision. The appeals court is expected to provide their rationale at a later date.
Abortions may be performed up to 24 weeks in a pregnancy under Britain’s 1967 Abortion Act.
Thursday, June 13, 2019
Jun. 10, 2019 (Politico): Judge says Missouri’s lone abortion clinic must remain open for now, by Rachana Pradhan:
On Monday, a judge blocked Missouri's attempts to close its last remaining abortion clinic. Planned Parenthood, which operates the clinic, has struggled against state officials' attempts to shutter the clinic based on claims of violations, which jeopardize its licensing.
Judge Michael Stelzer had previously granted the Planned Parenthood clinic reprieve from the states' attempts to deny license renewal upon the clinic's license lapse in May, and Stelzer has now directed Missouri health officials to make a decision as to whether to renew the clinic's license by June 21.
Planned Parenthood officials attest that the licensing conditions were essentially pretextual and "accused state officials of orchestrating a politically motivated probe to stamp out abortion." Last month, Missouri lawmakers banned almost all abortions beyond week eight of a pregnancy.
Missouri is just one of six U.S. states that have only one clinic providing abortions.
June 13, 2019 in Abortion, Abortion Bans, Anti-Choice Movement, Current Affairs, In the Courts, In the Media, Politics, Pro-Choice Movement, Reproductive Health & Safety, State and Local News, State Legislatures, Women, General | Permalink | Comments (0)
Tuesday, June 4, 2019
Jun. 1, 2019 (Vox): Illinois affirms the "fundamental right" to abortion by passing a new bill, by Gabriela Resto-Montero:
Illinois, in a newly-passed bill called the Reproductive Health Act, states that a “fertilized egg, embryo, or fetus does not have independent rights." The passing of this law thus grants pregnant people in Illinois the protected right to terminate their pregnancies. The Act was passed on Friday, May 31, 2019 and is expected to be signed by the governor.
State Senator Melinda Bush sponsored the bill and declared Illinois "a beacon for women's rights, for human rights." The legislation "repeals a 1975 state law that required spousal consent, waiting periods, placed restrictions on abortion facilities, and outlined procedures for pursuing criminal charges against abortion providers." It also "rolls back some state restrictions on late-term abortions by repealing Illinois’ Partial Birth Abortion Ban Act," a law that had not yet been enforced due to court injunctions.
While legislative threats to reproductive rights grow in numbers and severity throughout the country, Illinois is one of the first states to take concrete steps toward cementing the right to abortion--among other reproductive rights--within its borders. Other states (i.e. Alabama, Georgia, Ohio, Missouri, Indiana, Kentucky, Mississippi) are vying for a slot on the SCOTUS docket and with it a chance at the overturning of Roe v. Wade and its Constitutional protections.
Recently, though, the Supreme Court signaled it is not quite ready to re-consider Roe. "In its decision regarding an abortion law passed by Illinois’ neighbor, Indiana, justices struck down one provision while affirming another part of the law, largely avoiding the question of whether abortion should be legal."
Planned Parenthood and the American Civil Liberties Union are leading the way with lawsuits aimed at preventing the so-called "heartbeat laws," and comparable legislation threatening reproductive rights and the safety and dignity of pregnant persons, from going into effect within anti-abortion state legislatures. "The Planned Parenthood Action Fund reports that so far in 2019, there have been 300 anti-abortion bills introduced in 36 states."
Illinois is not the only state working to protect abortion rights, though. "Some 13 states including New Mexico, Rhode Island, and Nevada have proposed bills to include a right to abortion in their Constitutions. While many of those efforts are still in their early stages, Vermont passed a bill to include the protection in its Constitution last week."
June 4, 2019 in Abortion, Abortion Bans, Anti-Choice Movement, Current Affairs, Fetal Rights, Politics, Pro-Choice Movement, Reproductive Health & Safety, State and Local News, State Legislatures | Permalink | Comments (0)