Reproductive Rights Prof Blog

What the Election Results Mean for Abortion in America

The Cut (Nov. 8, 2018): What the Election Results Mean for Abortion in America, by Irin Carmon:

"Tuesday’s results were messy and contradictory, just like the current reality of reproductive rights," writes Irin Carmon for The Cut.

With federal courts failing to protect abortion access, it will be up to the states to give and take away. “We made huge gains at the state level, which is going to be crucially important as we face the post-Roe reality,” says NARAL president Ilyse Hogue. Exit polls showed broad support for Roe v. Wade, but Republican voters in states like Indiana and North Dakota were motivated by Brett Kavanaugh’s nomination to vote Republican.

First, the bad: the Senate and the federal judiciary "are gone." Republicans took a firm majority in the Senate, which has the sole authority to select federal judges and Supreme Court justices. Should Donald Trump have the chance to make another pick for the Supreme Court justice, writes Carmon, "the impact would be catastrophic."

Plenty of damage has and still can be done by Trump-controlled federal agencies, too. Earlier this week, the Department of Health and Human Services issued rules to limit abortion coverage on insurance plans on the exchange and to grant employers broad ability to opt out of including birth control in their plans.

But the good news is that without Republican control of the House, no major legislation restricting access to contraception or birth control — including defunding Planned Parenthood or a ban on abortion at 20 weeks — is likely to go anywhere.

At the state level, pro-choice Democrats didn’t lose a single governor’s seat and actually picked up seven seats. Former governors in some of the those states — like Kansas, Michigan, and Wisconsin — were zealous in limiting abortion access, making the replacements especially significant. Blue states also saw a total of 300 state legislature seats flipping Democratic, paving the way for stronger protections for abortion access.

In New York, eight state Senate seats went to Democrats, after a concerted campaign highlighted Republican opponents’ refusal to a Reproductive Health Act that would safeguard abortion liberty in New York in the event that Roe v. Wade is overturned. Democrats now control the New York State Senate for the first time in a decade.

Some Republican supermajorities, which can override vetoes, were shrunk to simple majorities. Perhaps most promisingly, pro-choice champions won in red states, like Colin Allred in Texas. In Orange County, California, 31-year-old Katie Hill, who spoke openly about how her miscarriage at 18 had informed her support for reproductive freedom, bested the anti-abortion Steve Knight.

Abortion Rights Got Two Important Legal Wins Last Week

Rewire.News (Oct. 1, 2018): Abortion Rights Got Two Important Legal Wins Last Week, by Jessica Mason Pieklo:

 A Federal court in Kentucky ruled a 1998 state law aimed at limiting abortion clinics unconstitutional. 

The law requires abortion clinics to have written transfer agreements with ambulance services and hospitals, often referred to as "transfer and transport" requirements.  Even though the state's last abortion clinic (and a plaintiff in the lawsuit) has been able to maintain the licensure required by the law--and so stay open--the court agreed with the clinic's argument that Kentucky Gov. Matt Bevin (R) has used the law as a tool to try to cut off abortion access. 

Judge Greg Stivers ruled:

The court has carefully reviewed the evidence presented in this case and concludes that the record is devoid of any credible proof that the challenged regulations have any tangible benefit to women’s health.  The regulations effectively eliminate women’s right to abortions in the state. Therefore, the challenged regulations are unconstitutional.

The judge affirmed that “the challenged regulations are not medically necessary and do absolutely nothing to further the health and safety of women seeking abortions in the Commonwealth of Kentucky." The decision is expected to be appealed in the 6th Circuit. 

A federal court in Virginia also ruled last week that that a similar lawsuit challenging the state's anti-choice licensing and oversight restrictions can move forward. 

 

Louisiana's 'admitting privileges' abortion law upheld

NOLA.com (Sep. 27, 2018): Louisiana's 'admitting privileges' abortion law upheld, by The Associated Press:

A panel for the 5th Circuit Court of Appeals ruled Wednesday that a Louisiana law requiring that abortion providers have admitting privileges at nearby hospitals does not violate the constitutional right to abortion.

The 2-1 ruling from the 5th Circuit panel notes Whole Woman's Health v. Hellerstedt, but the majority found Louisiana's law does not impose the same "substantial burden" on women as the Texas law that the Supreme Court struck down in 2016. The ruling reversed a Baton Rouge-based federal judge's ruling in the case and ordered the lawsuit by opponents of the law dismissed.

"Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually," Judge Jerry E. Smith wrote in the opinion joined by Judge Edith Brown Clement. "Few Louisiana hospitals made that demand."

The law's immediate effects are unclear as to the three abortion clinics that court records indicate operate in Louisiana -- in New Orleans, Baton Rouge and Shreveport.

Opponents of the law have argued it would make it very difficult or impossible for many to obtain abortion care in Louisiana, saying the law could result in one or two clinic closures and, eventually, a loss of access to abortion by 70 percent of individuals seeking abortion care in Louisiana.

Judge Smith rejected that argument. His opinion didn't attack the district judge's decision that the law's benefits were minimal. Instead, he wrote that the 2017 ruling, by Judge John deGravelles, exaggerated the burden on women seeking an abortion. He found no evidence that any Louisiana clinics will close because of the law, stating that there is only one doctor at one clinic who currently is unable to obtain admitting privileges at a nearby hospital. If he stops performing the procedure, Smith wrote, it would affect "at most, only 30 percent of women, and even then, not substantially."

The dissenting judge, Patrick Higginbotham, took his colleagues to task, saying they retried the case after the district judge had given full consideration to the facts. "At the outset," he wrote, "I fail to see how a statute with no medical benefit that is likely to restrict access to abortion can be considered anything but 'undue."

 

How safe are abortion rights in New York if Brett Kavanaugh is confirmed?

Albany Times-Union (Sept. 18, 2018): How safe are abortion rights in NY if Kavanaugh is confirmed?, by Bethany Bump:

New York legalized abortion in 1970, becoming the second state in the United States to broadly legalize abortion care and the first state in the nation to legalize it for out-of-state residents.

At the time, the law was seen as liberal, but no longer, according to legal scholars and experts. As confirmation hearings for Brett Kavanaugh proceed in the U.S. Senate and the fate of Roe v. Wade hangs in the balance, New York's abortion laws have received increased attention at the state and local level.

"There has been a dramatic increase by states in the last decade to try to test the boundaries of the nation's abortion law, and it seemed to be in anticipation of changes on the Supreme Court," said Andy Ayers, director of Albany Law School's Government Law Center.

Though a common assumption is that New York is generally safe from federal rollbacks on progressive issues, a policy brief authored by Ayers and published last week by Albany Law School and the Rockefeller Institute of Government highlights exactly why that might not be the case when it comes to abortion rights.

Under New York penal law, abortion is technically a crime. The 1970 law that legalized abortion simply made the procedure a "justifiable" crime under two specific circumstances: when it is performed within 24 weeks of conception or when it is performed to save a woman's life. The law contains no health exception or any other exception (such as when the fetus is nonviable) from the 24-week restriction. However, the Supreme Court later ruled in Roe and in Planned Parenthood v. Casey that denying a health exception or forcing women to carry nonviable fetuses to term constitute unconstitutional restrictions on access to abortion care.

In 1994, the New York Court of Appeals wrote that "the fundamental right of reproductive choice, inherent in the due process liberty right guaranteed by our state constitution, is at least as extensive as the federal constitutional right," and went on to cite both Roe and Casey. 

"In lawyer terms, this was 'dicta,' meaning non-binding," said Ayers, who is an adviser to the Rockefeller Institute's Center for Law and Policy Solutions. "But to me, it's very, very hard to imagine that our Court of Appeals would find it permissible to restrict abortion in a way that Roe would not have allowed."

Although legal experts agree it's unconstitutional for New York to deny late-term abortions to women to protect their health or when the fetus is nonviable, those exceptions remain a gray area to some medical professionals.

The law governing abortion in New York exists within the state's penal code, meaning violators could face criminal punishment rather than civil liability. Some doctors in New York have urged some patients to seek a late-term abortion in another state.

The Reproductive Health Act, a bill that was introduced in the state Legislature in 2017 to bring New York's abortion law in line with Roe and Casey, would lessen this effect by moving abortion statutes out of state penal law and into the state's public health law. It would also expand the types of medical professionals allowed to perform abortions to include nurse practitioners and physician assistants.

As President Donald Trump prepared to announce Brett Kavanaugh as his Supreme Court nominee this summer, and amid pressure on the left from Democratic primary opponent Cynthia Nixon, Governor Andrew Cuomo spoke out against Republican state senators who have refused to pass the bill.

Other states have had better luck amending their abortion laws as the ideological makeup of the Supreme Court faces its most significant shift since the Second World War. Massachusetts recently amended its laws to bolster abortion protections, while at least fifteen states have passed laws in recent years that would prohibit abortion should the Supreme Court overturn Roe.

"If a significant number of other states start prohibiting abortion or making it hard to access," Ayers said, "we may see people come into New York to get abortions again, just like they did in the '70s."

This past Thursday, the New York City Council Committee on Women, chaired by Council Member Helen Rosenthal, held a hearing on the current status of reproductive rights and access to abortion services in New York City. The Committee heard Council Resolution 84, introduced by Public Advocate Letitia James, Council Member Rosenthal, and Council Member Justin Brannan, which urges the State Legislature to pass, and the Governor to sign, the Reproductive Health Act. Abortion rights advocates testified at the hearing, including Cynthia Soohoo, Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law. More information about the hearing, including video of the hearing, can be found here.

Northern Ireland women may not be able to access abortion pills in England

BBC News (Sept. 13, 2018): NI women may not be able to access abortion pills in England, by Emma Vardy:

Women from Northern Ireland who travel to Britain for abortion care may not be able to access abortion pills. On average, each week 28 women travel from Northern Ireland to England for abortion care because, unlike the rest of the UK, the 1967 Abortion Act does not extend to Northern Ireland.

England allows women to take medication abortion at home, but patients may have to prove residency before being able to do so.

Northern Irish Labour MP Stella Creasy has backed access to the pills for women in NI. Speaking in the Commons, she said: "In Scotland there is a residency test for the abortion pill, which if it is copied in England would deny women coming from Northern Ireland this choice of procedure. 

"Let's get on and give our Northern Irish sisters the right to access healthcare and abortion at home, just as our sisters around the rest of the UK have."

The Department for Health only has the power to approve English homes as a place patients can legally take the abortion pill, according to Victoria Atkins, the Minister for Women and Equalities. However, Ms. Atkins said the definition of what "home" means is yet to be clarified.

"Officials are working with the Royal College of Obstetricians and Gynaecologists to determine protocol which will set out criteria for which places should be covered by the term 'home'... We will look at how the (early abortion pill) schemes are working in Scotland and Wales and learn from the experience there."

Northern Ireland is the only part of the United Kingdom where abortion is illegal in most circumstances. Previous attempts to change the law were blocked within the Northern Ireland Assembly, but there may now be enough support among Assembly members to overturn the ban. However, the devolved NI government has not sat since power-sharing collapsed in January 2017.

In June, UK Supreme Court judges said that Northern Ireland's abortion law violates human rights and called the current ban "untenable."

Ms. Atkins said: "We call upon those representatives in Northern Ireland to get their act together and get the Assembly working again so that Northern Ireland people can make their decision."

India Strikes Down Colonial-Era Ban on Gay Sex

The New York Times (Sept. 6, 2018): India Strikes Down Colonial-Era Ban on Gay Sex, by Jeffrey Gettleman, Kai Schultz, and Suhasini Raj:

India's Supreme Court unanimously struck down a ban on consensual gay sex, a remnant of the country's colonial past and one of the oldest bans of its kind. The Court called the law "irrational, indefensible and manifestly arbitrary." 

The Court's decision came after weeks of deliberation, years of legal arguments, and decades of activism. Human rights advocates in India and around the world celebrated as India joined the growing list of countries granting full rights to gay-identifying people. Similar laws have been overturned in the United States, Canada, England, and Nepal, among others. 

In 2009, a court in New Delhi had ruled that the law could not be applied to consensual sex, but religious resistance to this decision followed by an appeal led to the restoration of the full law in 2013. The court deferred at that point to the Parliament and claimed the law only applied to a "minuscule fraction of the country."

In 2016, activists rallied five brave plaintiffs identifying as gay and lesbian Indians who alleged their rights to equality and liberty were violated under the law (Section 377). Eventually, more than two dozen additional Indians joined the case while it was pending before the Supreme Court.

The September 2018 decision struck down the prohibition against gay sex, and the Court also made illegal all discrimination based on sexuality, extending "all constitutional protections under Indian law" to gay people.

The law was written in the mid-19th century and applied to "unnatural sexual acts." The law, which criminalized people who engaged in "intercourse against the order of nature," remains on the books to apply to cases of bestiality, for example, but now no longer can be used against consensual sex. “'History owes an apology to members of the community for the delay in ensuring their rights,' Justice Indu Malhotra said."

Menaka Guruswamy was one of the lead attorneys representing the petitioners. This decision is a "huge win" she said. The lawyers' arguments centered on the legal issues but also embraced pleas to the Justices to recognize the humanity of those who have been affected by Section 377 for decades.

The law is notably a vestige of British colonialism. Hinduism, the dominant religion in India, is generally permissive of same-sex relationships, but levels of tolerance were eviscerated under British rule. The British leaders implemented Section 377, which imposed a life sentence on those in violation. While the law has been greatly limited, India remains a conservative country in many ways, and fundamentalist groups across religions--Hindu, Muslim, and Christian--protested the decision.

In recent years, though, many more Indians have come out, identifying publicly as gay, lesbian, and transgender. Now that these lifestyles are no longer criminalized, Indian activists hope that many more Indians will come out and be embraced by their country. 

Kavanaugh comments on abortion to be parsed in confirmation hearings

ABC News (Sept. 3, 2018): Kavanaugh comments on abortion to be parsed in confirmation hearings, by Stephanie Ebbs:

Brett Kavanaugh testifies at his Supreme Court confirmation hearings Tuesday, and nothing will be parsed more closely than his first public comments on abortion.

Senate Democrats are expected to grill Kavanaugh on the Supreme Court's abortion jurisprudence and access to contraception.

Abortion rights groups will be listening to how Kavanaugh responds when asked if he agrees with President Trump's comments that Roe v. Wade should be overturned and what Kavanaugh meant when he described Roe as "settled law."

During his 2006 confirmation hearing for the federal bench, Kavanaugh committed to following Roe v. Wade but would not comment on his personal opinion of abortion. "The Supreme Court has held repeatedly, senator, and I don't think it would be appropriate for me to give a personal view of that case," Kavanaugh told Sen. Chuck Schumer at the time.

Over the weekend, Sen. Lindsey Graham, the South Carolina Republican who sits on the Senate Judiciary Committee, said he hopes Kavanaugh is open to both sides of any case challenging Roe, including that the decision should be overturned. In an interview, Graham said he would consider Kavanaugh "disqualified" if he promised only to uphold or overturn Roe v. Wade.

Republican Senator Susan Collins of Maine, has said she won't vote for a justice  "hostile" to Roe v. Wade. But after meeting with Kavanaugh earlier this month, she said he had called Roe "settled law."

Even if Kavanaugh is not in favor of overruling Roe v. Wade, there is evidence that he would interpret the right to abortion narrowly. Last year, Kavanaugh dissented in a court decision that allowed an undocumented minor in U.S. custody to get an abortion. He argued that the government could force the minor to wait until she was transferred from a government-run immigration center to a sponsor before having the abortion. Kavanuagh argued that the delay did not constitute an "undue burden" because other laws regarding abortion can cause similar delays.

Abortion rights advocacy groups want Kavanaugh, or any other Supreme Court nominee, to affirmatively support the "personal liberty standard" and say as well that the Constitution protects an American's right to decide to use contraception, have an abortion, or marry same-sex partners.  But, Kavanaugh is unlikely to make such a statement and has publicly expressed misgivings about such liberty rights.

In his dissent to the Roe v. Wade, Justice William Rehnquist wrote that the framers of the Constitution did not intend for the 14th Amendment to overrule states' ability to write their own laws about abortion because there were state laws regulating it at the time.  In a speech at the American Enterprise Institute last year Kavanaugh said that while Rehnquist couldn't convince the other justices he succeeded in "stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition."

Brazil’s Supreme Court Considers Decriminalizing Abortion

Aug. 3, 2018 (New York Times): Brazil’s Supreme Court Considers Decriminalizing Abortion, by Manuela Andreoni & Ernesto Londoño:

The death of Ingriane Barbosa Carvalho on May 16, a 31-year-old mother of three who underwent an unsafe illegal abortion, illustrates the high stakes of the fight over reproductive rights that is taking place before Brazil’s Supreme Court during a rare two-day public hearing that started this past Friday.

The nation's high court is considering whether Brazil’s abortion laws — which forbid terminating pregnancies with few exceptions, including cases of rape and instances in which the mother’s life is in peril — are at odds with constitutional protections.

The hearing, which continues Monday, is unlikely to lead to the immediate legalization of abortion care, but reproductive rights activists in Brazil hope the hearing will set off a national debate on the issue, draw attention to the risks hundreds of thousands of women take each year as they resort to illegal abortions and ultimately pave the way to overhauling the existing law.

During the first day of arguments, a majority of the 26 speakers argued for decriminalizing abortion. Though the national Ministry of Health did not take an official position on the issue, Maria de Fátima Marinho, representing the ministry before the court, stated that unsafe, illegal abortions create public health challenges, leading to overcrowding of health care facilities as well as preventable illness and death.

The hearing is being held as Brazilian lawmakers take steps to adopt even more restrictive laws and abortion rights groups across the region face a strong backlash after attaining victories.

Brazil’s top court has ruled narrowly on abortion cases in recent years, signaling an inclination to expand access, but it has stopped short of making sweeping legal changes related to the issue.

In March 2017, the Socialism and Liberty Party and Anis, a women’s rights group, filed a petition asking the court to rule that abortion care within the first twelve weeks of gestation should not subject the pregnant person or the abortion provider to prosecution.

They argue that abortion laws written in 1940 violate protections conferred by the 1988 Constitution, including the right to dignity, equal protection, and access to health care.

A ruling in favor of proponents of decriminalization would be the first step toward legalizing abortion in a nation of 210 million people where an estimated one in five women have terminated unwanted pregnancies.

Estimates of the number of abortions performed in Brazil each year range from 500,000 to 1.2 million. Each year, more than 250,000 women are hospitalized as a result of complications from abortions, according to the Brazilian Health Ministry. In 2016, the last year for which official figures were available, 203 women died as a result of illegal and unsafe abortions.

Since 2000, 28 countries and regions have expanded abortion rights. Last year, lawmakers in Chile lifted the country’s total prohibition on abortion, and next week the Senate in Argentina will vote on a bill that could legalize abortion there.

The Supreme Court hearing prompted Ladyane Souza, a lawyer in Brasília, to publicly disclose that she had an abortion two years ago, even though doing so means she could be prosecuted.

“It’s very cruel to submit women to dealing with this all alone, underground,” Ms. Souza, 22, said. “During that time, I wanted very much to talk to my mother, because I felt it would have been easier if my mother knew, if my friends knew, but I was afraid of being prosecuted.”

Ms. Carvalho’s relatives opted to bury her in a cemetery several miles from her hometown after local residents reacted with outrage and scorn to details of her death. They held a low-key ceremony as her remains were deposited in an unmarked grave in a small hillside cemetery.

“I wish she had survived, so she could have been arrested and learned to be responsible,” Ms. Barbosa, her aunt, said.

With fate of U.S. abortion rights unclear, Maryland House speaker aims to strengthen state protections

Aug. 2, 2018 (Washington Post): With fate of U.S. abortion rights unclear, Md. House speaker aims to strengthen state protections, by Erin Cox:

Maryland House Speaker Michael E. Busch plans to lead a statewide effort to enshrine a woman’s right to safe and legal abortion care in the Maryland constitution, joining other states in attempting to preempt any move by the Supreme Court to erode abortion protections.

The Speaker said he will personally introduce and earn support for legislation asking voters to approve a constitutional amendment, likely in the 2020 presidential election. An amendment would ensure that even if the Supreme Court overturned Roe v. Wade, no legislation outlawing abortion could be passed in Maryland.

Maryland Governor Larry Hogan, a Republican who is anti-abortion, said that that letting voters decide on the issue “sounds like a great idea.” Ben Jealous, his Democratic opponent running to replace Hogan this November, vowed to campaign in support of the amendment.

Abortion opponents and abortion rights advocates believe a strongly worded dissent Supreme Court nominee Brett Kavanaugh issued last fall, in a case involving a pregnant immigrant teenager in federal custody, indicates he would favor more abortion restrictions and might support overturning the federal protections that began with Roe.

Last week, Massachusetts Governor Charlie Baker signed a bill repealing century-old laws that criminalized abortion care. West Virginia and Alabama have initiatives on the ballot this year to clarify that their state constitutions do not protect the right to an abortion.

If Busch succeeds in persuading three-fifths of each chamber of the Maryland General Assembly to approve the constitutional amendment next year, Maryland voters would see it on the 2020 ballot.

Nine states currently have abortion protections in their state constitutions, according to the Center for Reproductive Rights: Alaska, California, Florida, Iowa, Massachusetts, Minnesota, Montana, New Jersey and New Mexico.

Busch said the amendment would insert Maryland’s existing abortion statute into the state constitution. That law was approved by the General Assembly in 1991. After antiabortion groups petitioned it to a referendum, it passed with 61.7 percent of the vote.

The law allows individuals to seek abortion care without interference from the state if the fetus is not viable outside the womb. An individual may also terminate a pregnancy at any point if the fetus has a “genetic defect or serious anomaly” or if an abortion is necessary to protect the health of the pregnant person.

Busch said he will introduce the amendment proposal when the legislature convenes in January and is confident he can find the votes from lawmakers on both sides of the aisle.

Who gets the embryos? Whoever wants to make them into babies, new law says.

The Washington Post (Jul. 17, 2018): Who gets the embryos? Whoever wants to make them into babies, new law says, by Ariana Eunjung Cha: 

New court cases cases are grappling with the decision of what to do with frozen embryos created during a marriage that later dissolves. In many cases that Cha reports on, the couples chose to create and freeze several embryos in the wake of a cancer diagnosis and treatment schedule that threatened later fertility.

When these same couples faced divorce, there were bitter divides over what should be done with the embryos: one party wanted to maintain "ownership" of the embryos for a future chance at children while the other wanted the embryos destroyed, fearing unwanted future financial or relationship obligations. 

With the number of frozen embryos in the United States soaring into the millions, disputes over who owns them are also on the rise. Judges have often — but not always — ruled in favor of the person who does not want the embryos used, sometimes ordering them destroyed, following the theory that no one should be forced to become a parent.

In Arizona, though, a "first-in-the-nation law" went into effect on July 1 that states "custody of disputed embryos must be given to the party who intends to help them 'develop to birth.'"

The legislation represents for some lawmakers the idea that frozen embryos have their own right to life, and many imagine that the implications could eventually include a delineation of when life begins and a claim to a separate set of embryonic rights of their own as human beings (rather than the discussion being centered on who "owns" the embryos). 

Some groups, like the anti-abortion Thomas More Society, advocate for that embryos to be considered "children" in the legal sense, asking judges to make decisions on disputes based on the best interest of the "child." 

Debates to extend personhood to unborn embryos and fetuses abound in anti-abortion work. Abortion rights advocates are concerned that these discussions could further disintegrate the right to abortion in the United States. "If a days-old embryo in a freezer has a right to life, why not a days-old embryo in utero?"

While judges have historically ordered disputed embryos destroyed based on the wishes of the party who does not want a child, an Arizona judge chose to balance one party's "probable inability to have a child without the embryos" against the other party's "desire to not be a father" a different way. 

Maricopa County Superior Court Judge Ronee Korbin Steiner held that Ruby Torres, who wanted the embryos in order to have biological children one day, had no right to them. The judge did not order them destroyed, though, and instead ordered that they go up for donation.

Torres appealed the decision and expects a new ruling any day. 

The new Arizona law that states embryos shall be given to the party who intends to develop them to birth was written in response to this case to "help" people in Torres' situation. It also attempts to recognize the rights of those who do not want the embryos used by providing that those parties would not be liable for child support in the future. 

Both the judicial decisions and the legislation continue to prove extremely controversial:

The Center for Arizona Policy, a conservative lobbying group that has successfully pushed antiabortion legislation in the state, supported the measure, saying the bill would “lead to more consistent rulings.”

The American Society for Reproductive Medicine, which represents doctors, nurses and other professionals who work on fertility issues, opposed the measure, arguing that it would have a profound impact on reproductive medicine.

Medical professionals foresee profound complications to stem-cell research in particular, which relies on embryos donated to science. Such research is believed essential in developing treatments for many diseases and conditions like Parkinson's and Alzheimer's. The treatment and storage of embryos as a result of the new legislation will likely make embryonic stem cells much more scarce.

In a friend-of-the-court brief in Torres' pending appellate case, the Academy of Adoption and Assisted Reproduction Attorneys urged judges in the Arizona Court of Appeals to balance the interest of each former spouse. They argue that the parties claims are not equal and that "the constitutional protection against compulsory parenthood is [generally] greater than any procreative interest in pre-embryos." 

Time will tell both if the appellate judges affirm Judge Steiner's controversial ruling (likely leading to further appeals) while we also wait for the inevitable challenges to Arizona's new embryo law.

Battle lines drawn over abortion ahead of Trump's supreme court pick

The Guardian (Jul. 8, 2018): Battle lines drawn over abortion ahead of Trump's supreme court pick, by Ed Pilkington:

Battle lines have been drawn over the future of abortion in America on the eve of President Donald Trump’s nomination of a second justice to the U.S. Supreme Court that could put Roe v. Wade in jeopardy.

Trump has said he will announce his nominee for the seat in a characteristic display of political braggadocio on primetime TV at 9pm ET on Monday night (July 9). On Sunday there was no indication that he had yet made his decision, as speculation continued to swirl around the shortlist for the appointment.

Both sides in the increasingly acrimonious dispute took to the Sunday political talk shows at the start of what promises to be an epic tussle over the ninth seat on the nation’s highest court. The position will be left vacant by the retirement of Justice Anthony Kennedy, 81, who had acted as the swing vote on many critical issues including abortion.

In the course of the 2016 election, Trump made changing the face of the Supreme Court a key campaign pledge that was instrumental in firing up his base of right-wing conservative voters. In the presidential debates he vowed to appoint only Justices committed to “automatically” overturning Roe.

Now, key players in the appointment are reining back on the suggestion that the newly-composed court will target the pro-choice ruling and re-criminalise the practice. Leonard Leo, the vice president of the conservative Federalist Society who selected Trump’s longlist of 25 candidates for the Supreme Court, told ABC’s This Week that warnings about Roe v Wade were a “scare tactic." Leo said that it was impossible to predict the positions of any of the leading candidates for the seat on abortion. “Nobody really knows,” he said. “We’ve been talking about this for 36 years going all the way back to the nomination of Sandra O’Connor, and after that you only have a single individual on the court who has expressly said he would overturn Roe.”

Trump is known to have interviewed at least seven candidates for the post, all drawn from the Federalist Society longlist. Of those, the shortlist is understood to have boiled down to four judges from various US Courts of Appeals– Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh, and Raymond Kethledge.

Of those individuals, Barrett is considered to have the most hard-line record opposing abortion rights, but that could cause problems among more moderate Republicans in the Senate, notably Susan Collins of Maine, who is already the target of ads being put out by pro-choice groups.

The New York Times on Sunday reported that Senate Majority Leader Mitch McConnell was strongly urging Trump to opt for either Hardiman or Kethledge on grounds that the other two might be impossible to get confirmed. While Barrett is problematic on the abortion issue, Kavanaugh is unpopular among some Republican senators because of his track record as staff secretary under President George W. Bush.

Democrats and pro-choice groups stepped up their rhetoric on Sunday over the danger of Trump’s second pick. Richard Blumenthal, Democratic senator from Connecticut, told ABC’s This Week that it posed a fundamental threat to abortion rights. “This next nomination will be the swing vote to overturn Roe v. Wade and equally important to eviscerate the protections of millions of Americans who suffer from existing conditions and other healthcare rights along with workers’ rights, gay rights, voting rights.”

The Iowa Abortion Waiting Period Has Been Struck Down & It's A Major Reproductive Rights Victory

Bustle (Jun. 29, 2018): The Iowa Abortion Waiting Period Has Been Struck Down & It's A Major Reproductive Rights Victory, by Morgan Brinlee: 

Despite concerns for the future of reproductive rights in the imminent wake of Justice Kennedy's retirement, reproductive rights advocates secured a victory in Iowa last week when the Supreme Court of Iowa struck down a 72-hour waiting period imposed on women seeking abortions.

"The vast majority of women have made their decision by the time they present for care so the laws [mandating waiting periods] do not lead women to change their minds, Dr. Sarah Roberts, an abortion waiting period researcher who works as an associate professor at the University of California, San Francisco, tells Bustle. "They really just lead to increases in financial costs and increases in delay and also some increases in emotional distress along the way."

The Iowa Supreme Court found the restriction a violation of the state Constitution.  Dr. Sarah Roberts, an abortion waiting period researcher who works as an associate professor at the University of California, San Francisco, found that imposed wait periods actually lead to even greater delays in care as well as substantial increased costs for the women.

The ACLU of Iowa and Planned Parenthood of the Heartland are also involved in a lawsuit against the state's "heartbeat law," which bans abortion after 6-weeks, the time at which a fetal heartbeat can sometimes be detected. A District Court judge temporarily blocked the law, but if it goes into effect, some women may not have any option for abortion at all, as many don't find out they're pregnant until after six weeks.

Students sue University of Notre Dame for restricting access to some birth control

Washington Post (Jun. 27, 2018): Students sue University of Notre Dame for restricting access to some birth control, by Erin B. Logan: 

A Notre Dame alumna and three current student sued the university on Tuesday in the wake of Notre Dame's February 2018 announcement that it would deny access to "abortion-inducing" contraceptives. The lawsuit alleges violations of federal law and the First and Fifth Amendments. In addition to the university, the suit names the departments of Health and Human Services, Labor, and Treasury.

These health-care policy changes to Notre Dame's plan will affect undergraduate and graduate students as well as university employees and their dependents. The policy will go into effect on July 1 for employees and in August for students.

The roll-back of coverage by the university is a response to the U.S. Department of Health and Human Services' fall 2017 announcement that it would rescind the Obama-era rule mandating free contraceptive coverage in health plans. This requirement currently remains in effect, though, due to judicial injunctions. Notre Dame, however, carved out an exception for itself with the federal government after a 2013 suit against the mandate claimed a violation of its moral and religious convictions.

Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case

New York Times (Jun. 26, 2018): Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case, by Adam Liptak: 

Justice Thomas wrote for the five-justice, conservative majority who decided Tuesday that California's "crisis pregnancy centers" cannot be forced to provide information on abortion services in the state. 

The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, centered on a California law that requires pregnancy centers whose aim is to dissuade pregnant people from abortions to provide information on the availability of abortions in California.

The state requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

The centers argued that the law violated their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders said the notices combat incomplete or misleading information provided by the clinics.

The state legislature enacted the law after finding that hundreds of the pregnancy centers used "intentionally deceptive advertising and counseling" to confuse or intimidate women from making informed decisions about their health care. The law also required that unlicensed clinics disclose that they are unlicensed. 

Justice Thomas wrote that the requirements for the notices regarding abortion availability were too burdensome and infringed on the clinics' rights under the First Amendment. The ruling reverses a unanimous decision from a three-judge panel of the United States Court of Appeals for the Ninth Circuit, which had upheld the law.

Justice Breyer penned a dissent, joined by Ginsburg, Sotomayor, and Kagan, citing the contradiction between the majority's decision here and a Court decision in 1992 that upheld a Pennsylvania law that required abortion-performing doctors to inform their patients about other options, like adoption. 

Young Immigrant Women Have the Right to Access Abortion. Monday’s Supreme Court Decision Doesn’t Change That.

Jun. 4, 2018 (American Civil Liberties Union: Speak Freely): Young Immigrant Women Have the Right to Access Abortion. Monday’s Supreme Court Decision Doesn’t Change That, by Brigitte Amiri:

The Supreme Court on Monday steered around a long-pending abortion dispute between the Trump administration and ACLU lawyers over young immigrant women in custody, telling lower courts on Monday to start over in deciding the issue. In a short opinion, the justices wiped away rulings by several judges who last fall had cleared the way for a 17-year-old to see a doctor and obtain an abortion.

There has been a lot of confusion about Monday’s decision in the Jane Doe case, Azar v. Garza, but ACLU Senior Staff Attorney Brigitte Amiri provides two big takeaways "to clear things up."

First, Amiri writes that the ruling was limited to the case of one young woman, who already had her abortion. There is still a court order in place that prohibits the government from obstructing or interfering with unaccompanied minors’ access to abortion, and today’s decision does not change that. Second, the Supreme Court rejected what Amiri calls the "government’s baseless request to find" that Amiri and her colleagues acted unethically.

The Supreme Court ruling vacates Jane Doe’s individual victory in the court of appeals that paved the way for her to obtain an abortion. Because Jane Doe has already obtained an abortion, the Court ruled that her individual claim related to abortion access is now moot. The ruling does not say anything about the merits of the constitutional question presented in the underlying case, namely whether the government can violate decades of Supreme Court precedent by banning abortion for unaccompanied minors.

The ACLU is still seeking a ruling that the government's policy is unconstitutional, and the Supreme Court’s ruling that Jane Doe's individual case is moot does not affect the rest of the case in any way, nor does it diminish a district court order that blocks  the government’s policy of obstructing unaccompanied pregnant minors' access to abortion.

On March 30th, the district court allowed the case to proceed as a class action and issued a preliminary injunction blocking the government’s no-abortion policy. The government has appealed that decision and asked the court of appeals to allow the policy to go back into effect while the appeal is pending. The court of appeals denied that request on the evening of June 4th, 2018 (following the Supreme Court's ruling), reaffirming that unaccompanied minors must have access to abortion. The briefing on appeal will happen during the summer, and oral argument will take place in September. 

The Court also rejected the government’s request to impose discipline on Amiri and her colleagues for representing their client to the best of their abilities. The government’s ethics claims have always been baseless, Amiri writes, and they are merely an attempt to intimidate Amiri and her colleagues. 

Judge blocks Mississippi law banning abortions after 15 weeks

The Hill (Mar. 20, 2018): Judge blocks Mississippi law banning abortions after 15 weeks, by Rebecca Savransky: 

The Gestational Age Act, signed into law by Mississippi Governor Phil Bryant on March 19, has already been judicially blocked. 

The law bans abortions after 15 weeks and is the toughest restriction on abortion in the nation. 

In response to the legislation, Mississippi's only abortion clinic sued, and U.S. District Judge Carlton Reeves granted a temporary restraining order on Tuesday, March 20. 

Mississippi was already one of the toughest states in which to receive an abortion before the new law was signed. The state requires people seeking abortions to receive counseling and to wait 24 hours before receiving the procedure. 

 

ProMedica Toledo Hospital authorizes patient-transfer agreement with Toledo, Ohio's last abortion clinic

Toledo Blade (Feb. 12, 2018): ProMedica authorizes patient-transfer agreement with Toledo's last abortion clinic, by Mark Reiter and David Patch:

Following a 5-2 Ohio Supreme Court ruling issued on February 6th ordering the closure of Toledo, Ohio's last abortion clinic for violating state law, the future of the clinic and of abortion access in northwest Ohio looked all too grim...until this past Monday the 12th.

After hours of protesting near ProMedica Toledo Hospital on Monday to call on ProMedica to enter into a patient-transfer agreement that would keep Capital Care Network, Toledo’s last abortion clinic, open, the hospital system’s board of trustees authorized the agreement.

In its decision ordering Capital Care Network to close, the Ohio Supreme Court cited that the clinic's hospital transfer agreement with the University of Michigan in Ann Arbor did not comply with the Ohio Department of Health's 30-minute transport time standard. The department had revoked Capital Care Network's license in 2014.

Following the enactment of a 2013 law requiring all abortion clinics in Ohio to maintain emergency patient-transfer agreements with local hospitals, Capital Care Network sued the state, arguing that the law presented an undue burden on abortion access in Ohio. While the lower courts sided with the clinic, the Ohio Supreme Court refused to tackle the state law's constitutional issues, instead finding that the state "had authority to revoke Capital Care's license based on the failure to comply with the administrative rule" promulgated by the Ohio Department of Health. Unless Capital Care Network could sign an agreement with a hospital within the 30-minute travel requirement, it would be forced to close.

Capital Care previously maintained an agreement with the University of Toledo Medical Center until 2013, when the hospital opted not to renew it. The Ohio legislature then prohibited publicly funded universities from providing transfer agreements to abortion clinics.

In its statement announcing the new agreement with Capital Care, ProMedica spokesperson Tedra White wrote, “entering into this agreement aligns with ProMedica’s mission and values, including our focus on being a health system dedicated to the well-being of northwest Ohio and our belief that no one is beyond the reach of life-saving health care.” “Furthermore," she wrote, "we believe that all individuals should have access to the best care in their neighborhoods.”

Jennifer Branch, an attorney representing Capital Care, said that once she obtains a copy of the transfer agreement, she will file documents with the Ohio Department of Health to halt license-revocation proceedings against the clinic.

Ohio has endured a wave of new laws restricting access to abortion care across the state over the past few years. Under Governor John Kasich, the number of abortion clinics in Ohio has dropped from sixteen to eight. Three are in the Cleveland-Akron area, two in Columbus, and one each in Toledo, Dayton, and Cincinnati. For now, thanks to ProMedica, the number will stand at eight.

Supreme court agrees to hear antiabortion challenge to California disclosure law for pregnancy centers

Los Angeles Times (Nov. 13, 2017): Supreme court agrees to hear antiabortion challenge to California disclosure law for pregnancy centers, by David G. Savage:

The Supreme Court has granted certiorari to hear NIFLA vs. Becerra, in which an anti-abortion group challenges a California law that requires crisis pregnancy centers to notify patients that the state offers contraception and abortion services. 

The case centers on the Reproductive FACT Act, which requires pregnancy centers to disclose whether they have a medical license and whether medical professionals are available. The law also requires centers to post a notice in the waiting room that reads: "California has public programs that provide immediate free or low-cost access to comprehensive family planning services, including all FDA-approved methods of contraception, pre-natal care and abortion."

California lawmakers passed the disclosure law two years ago after concluding as many as 200 pregnancy centers in the state sometimes used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women” about their options for medical care.

The National Institute of Family and Life Advocates (NIFLA) represents 110 pregnancy centers in California that all claim the disclosure provision violates their free speech as "compelled speech." Such a disclosure, they claim, conflicts with their faith-based goal of encouraging childbirth and preventing abortion. 

The Californian pregnancy centers initially lost their case under three federal district judges. On appeal, the 9th Circuit Court upheld the lower court's decision. Last month, however, a judge in Riverside County ruled that the law violated the free-speech provisions of California's own state Constitution. 

California's Attorney General Xavier Becerra stands by the disclosure provision and its intent to provide women accurate information about their health care options.

It takes five justices for a majority opinion, and many expect the Court's decision to turn on the vote of Justice Kennedy. 

Texas' Ban on Safe Abortion Procedure Goes to Court

San Antonio Current (Nov. 2, 2017): Texas' Ban on Safe Abortion Procedure Goes to Court, by Alex Zielinski

The trial fighting Texas' latest anti-abortion law, Senate Bill 8, began last week. Whole Woman's Health sued Texas in July after the governor signed SB 8 into law.

SB 8 would completely prohibit dilation and evacuation (D&E) abortion procedures, require clinics to bury the remains of any abortion, and prohibit hospitals from donating aborted fetal tissue to medical research.

The current lawsuit, though, only challenges the ban on D&E abortions. Dilation and evacuation abortions are considered one of the safest procedures for abortions after 13 weeks. The ban does not allow for exceptions in the cases of rape or incest. The only alternatives to a D&E procedure for a woman seeking an abortion are either inducing labor and forcing delivery of the fetus or a surgery similar to a hysterectomy. Both options are risky and expensive. 

In August, U.S. District Judge Lee Yeakel temporarily blocked the law from going into effect on September 1. On November 2, the plaintiffs returned to Judge Yeakel's courtroom to request the bill's D&E ban be permanently blocked. 

Yeakel has thus far supported a woman's constitutionally-protected right to abortion, saying: "The state cannot pursue its interest in a way that denies a woman her constitutionally protected rights to terminate a pregnancy before the fetus is viable." 

 

Trump DOJ seeks possible disciplinary action against lawyers in abortion case of unaccompanied minor

ABC News (Nov. 3, 2017): Trump DOJ seeks possible disciplinary action against lawyers in abortion case of unaccompanied minor by, Geneva Sands

The U.S. Department of Justice (DOJ) filed a petition with the U.S. Supreme Court today asking for possible disciplinary action against the attorneys that represented an undocumented minor who had an abortion over objections from the Trump administration.

Last week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of 17-year-old Jane Doe. Doe learned she was pregnant after being placed in a detention facility for children under the purview of the Department of Health and Human Services. She says she knew immediately that an abortion was the right option for her.

Doe, represented by the ACLU, had been fighting the federal government to be granted a medical visit to a clinic to receive her abortion. The government had instead taken her against her wishes to a pro-life clinic that tried to persuade her not to abort and showed her sonograms against her will. 

Doe was finally able to get her abortion on October 25. 

The Trump administration has now accused the ACLU of misleading the government on the timing of Doe's abortion. They claim that after informing Justice Department attorneys that the teen's procedure would occur on October 26th, Doe's attorneys actually scheduled it for early on October 25, thereby avoiding Supreme Court review. 

Government attorneys allege that the ACLU, while advocating for their client, violated their duties to the court and to the Bar. The administration believes the judgment under review that enabled Doe to receive the abortion should be vacated and additionally seeks potential disciplinary action against Doe's attorneys.

In response, the ACLU says the government failed to file a timely review with the Supreme Court and that Doe's attorneys acted both in the best interest of their client and "in full compliance with the court orders and federal and Texas law."

 According to Jane herself:

"I’m a 17-year-old girl that came to this country to make a better life for myself. My journey wasn’t easy, but I came here with hope in my heart to build a life I can be proud of. I dream about studying, becoming a nurse, and one day working with the elderly," she wrote. "This is my life, my decision. I want a better future. I want justice," she concluded.