Reproductive Rights Prof Blog

June Medical Argument Focuses on Application of the Undue Burden Standard After Whole Woman’s Health

(March 5, 2020) By Cynthia Soohoo

Despite calls from conservative lawmakers to overturn Roe v. Wade, yesterday’s Supreme Court argument in June Medical Services v. Russo focused narrowly on how the Court should apply its 2016 holding in Whole Woman’s Health v. Hellerstedt rather than on whether the Court should overrule or overhaul the undue burden standard.  And despite Louisiana’s last minute assertion that the physician plaintiffs lacked standing to bring the case, only Justice Alito seemed interested in taking on third party standing. All eyes were on Chief Justice Roberts and Justices Gorsuch and Kavanaugh, the two newest members of the Court. Gorsuch did not ask a single question. Both Roberts and Kavanaugh focused on how the Court should apply Whole Woman’s Health to future cases.

A few minutes into the argument, Justice Alito asked Julie Rikelman, counsel for June Medical, several questions on third-party standing. Louisiana’s Solicitor General Elizabeth Murrill also led off with third party standing, but the other justices did not substantively engage with the issue. Alito vehemently disagreed with Rikelman’s position that Louisiana waived the standing argument, but through questioning Justice Ginsburg underscored that if the Court were to consider standing at this point it would prejudice plaintiffs who might have added a non-doctor plaintiff if Louisiana had raised the issue sooner. Justice Breyer also expressed some frustration that the Court was being asked to consider standing, noting there have been at least 8 cases in which the Court has recognized third party standing going back over 40 years.  He questioned when it was appropriate to reconsider established precedent, asking are we to “go back to Marbury v. Madison.”

The bulk of the argument focused on how Whole Woman’s Health’s holding (that a Texas law requiring doctors providing abortions to have admitting privileges at a hospital within 30 miles of the procedure constituted an undue burden on abortion) applied to other admitting privilege cases. In June Medical, the 5th Circuit reversed a district court decision holding that a virtually identical law imposed an undue burden. Justice Roberts asked counsel whether courts reviewing admitting privileges still needed to conduct a state by state factual inquiry into whether the laws constitute an undue burden after Whole Woman’s Health. 

Rikelman maintained that when courts review an admitting privilege law, they should apply Whole Woman’s Health’s finding that such laws do not provide any health benefit. Then, turning to the other part of the undue burden test, courts should consider the burdens placed on abortion access on a case by case basis.  She emphasized that in June Medical, the district court found that the law imposed significant burdens. Justice Kavanaugh seemed interested in how the benefits and the burdens should be weighed, posing a hypothetical about whether an admitting privilege law would be unconstitutional even if it did not impose any burdens on abortion provision. 

Rikelman expressed some skepticism that an admitting privilege requirement would not impose any burden on abortion provision and noted that such a law was not before the Court. She emphasized that admitting privilege laws are always likely to pose an undue burden because they create barriers without any benefits. 

In response to similar questions, Murrill argued that Whole Woman’s Health's reasoning would not be controlling on the benefit side of the undue burden test where the state can show a greater benefit based on its regulatory structure.

The rest of the argument focused on whether Louisiana could establish that its law imposed greater benefits or lesser burdens than the Texas law. Louisiana’s main argument on the benefit side was that the admitting privilege law serves a credentialing function. During this line of questioning, like 2016 Whole Woman’s Health argument, the female justices asked several questions reflecting a familiarity with abortion and reproductive health procedures that made it difficult for Murrill to make unsupported assertions about a health benefit. Ginsburg and Justice Sotomayor repeatedly noted that law’s 30 mile requirement made no sense if Louisiana’s purpose was to improve care for the treatment of complications from medical abortions.  Ginsburg emphasized the low complication rate for abortion procedures and Louisiana’s failure to impose a similar requirement on doctors who perform DNCs to manage miscarriages. Justice Kagan stated that in Whole Woman’s Health, the Court held that an admitting privilege requirement could not serve a credentialing function if privileges are denied for reasons other than quality of care. She, Ginsburg and Sotomayor noted that admitting privileges are often denied based on factors, such as the number of admissions a doctor makes to a hospital, which reflect hospitals’ commercial interests rather than doctors’ competency.

On the burden side, Murrill and Principal Deputy Solicitor General Jeffrey Wall argued that the admitting privilege law did not cause the burden on abortion care because the doctors could have tried harder to get admitting privileges. Wall asserted that it was not in the plaintiff doctors’ interest to try hard to get privileges, and Murrill went further, suggesting that the doctors “sabotaged” their own applications. There was substantial back and forth between counsel and justices about what individual “John Doe” doctors could have done. Rikelman emphasized that many of the hospitals bylaws had provisions that disqualified the doctors because of insufficient hospital admissions, the doctors had applied to the hospitals where they had the best chance of being admitted, and the district court found that all but one of the doctors were unable to get privileges for reasons that had nothing to do with competency. Despite the disqualifying provisions and the district court’s findings, Wall took the position that the doctors should have applied to the full range of hospitals.

While Gorsuch’s silence makes it difficult to assess his views, questioning from the other justices (besides Alito) suggested that a majority of justices wished to focus on the very narrow question of how lower courts should apply Whole Woman’s Health to admitting privilege laws rather than to revisit the Court's abortion jurisprudence. Given the consistent onslaught of new and different types of laws restricting abortion each year such a narrow focus may be unsatisfying for those looking to the Court for more guidance, but it may be the most the Court is willing to do at this point.

The Supreme Court Could Place an Impossible Burden on Women Fighting for Abortion Rights

Mother Jones (Feb. 27, 2020): The Supreme Court Could Place an Impossible Burden on Women Fighting for Abortion Rights, by Becca Andrews and Jessica Washington:

Mother Jones reporters Becca Andrews and Jessica Washington describe the potential impact of Louisiana'a claim that doctors lack standing to challenge abortion regulations that will be considered by the Supreme Court in June Medical Services v. Russo next week.  Since the 1976 case Singleton v. Wulff, the Supreme Court has allowed abortion providers to file lawsuits challenging abortion restrictions rather than forcing pregnant women to bring the suits on their own behalf.  As a practical matter a decision that doctors lack standing would make it more difficult to quickly challenge unconstitutional legislation and impose great hardship on women who seek an abortion.

“It’s almost impossible to imagine that an individual patient…would divert the resources required to litigate the case away from the challenges of her own personal life, to vindicate the rights of other women in order to prevent the law from going into effect,” says TJ Tu, a lawyer representing June Medical, the Louisiana abortion provider, on behalf of the Center for Reproductive Rights.

While Roe v. Wade was brought by a pregnant woman, Norma McCorvey, the article suggests that it would be riskier for a woman to challenge an abortion restriction today given that the "inescapable gaze of the internet brings risks of harassment and doxxing." McCorvey herself was not able to benefit from the court's holding; she gave birth while the case was being litigated and was thrust into a harsh spotlight that she did not want, later becoming an anti-abortion crusader.

Attacking doctors' standing also helps support an anti-abortion message that doctors who provide abortions are not acting in their patients' best interests.

Mary Ziegler, a professor at Florida State University who studies the history of abortion law, explains that the approach calls into question the intentions of abortion providers. “The general argument is that abortion providers don’t have patients’ best interests in mind,” Ziegler says. “If the court accepts that argument, it will say a lot about the court’s willingness to buy arguments that abortion is bad for patients or bad for women.”

Oral argument in June Medical is scheduled for next Wednesday.

Center for Public Health Law Research Publishes New Data on Abortion Laws

February 13, 2020

Temple's Public Health Law Research Center has published data on abortion laws in effect in the 50 states from December 1, 2018 to December 1, 2019.  The interactive database provides information about 15 types of abortion laws including: abortion bans, TRAP regulations, insurance restrictions, refusal to provide abortions, abortion advertising and many other types of restrictions. In addition to statutes and regulations the data released also tracks court cases.

Some of the developments in 2019 captured in the database include:

• Five states enacted laws banning abortion based on gestational age, including a law in Alabama that bans virtually all abortions throughout pregnancy. Four have been challenged and blocked by courts. The Louisiana law will only take effect if a similar Mississippi ban, currently blocked, is allowed to take effect.
• Four states — Arkansas, Kentucky, Missouri, and Utah — enacted targeted “reason-based” bans that prohibit abortion based on the pregnant person’s reason for seeking an abortion. These reasons can include fetal disability or anomaly, Down syndrome, or the race or sex of the fetus.
• West Virginia passed a new law prohibiting the use of telemedicine for medication abortion, bringing the number of states with this restriction to nine.
• There were 37 court challenges to abortion bans in 2019 that violated constitutionally established reproductive rights.

The database was developed by the Policy Surveillance Program of the Center for Public Health Law Research in collaboration with the Guttmacher Institute, Resources for Abortion Delivery (RAD), American Civil Liberties Union (ACLU), Center for Reproductive Rights (CRR), National Abortion Federation (NAF), and Planned Parenthood Federation of America (PPFA). It is available on lawatlas.org.

 

 

Erdman and Cook Publish "Decriminalization of Abortion: A Human Rights Imperative"

Rebecca Cook and Joanna Erdman's co-authored article was recently published in a special issue of Best Practice & Research Clinical Obstetrics & Gynaecology. The abstract follows.  

Joanna N. Erdman and Rebecca J. Cook, "Decriminalization of abortion – A human rights imperative," Best Practice & Research Clinical Obstetrics & Gynaecology 62 (Jan. 2020): 11-24. 

Decriminalization of abortion is the removal of abortion from the criminal law. This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.

Human rights require:
--- the withdrawal of punitive abortion measures,
--- access to abortion, at least on grounds of life, health, sexual crime, and fetal impairment,
--- timely access to information about the pregnancy and grounds for its possible termination, written reasons for denials, and review mechanisms for denials, and
--- that abortion services be available to all, irrespective of their specific circumstance.

Reproductive Justice Organizations Condemn Regulations Restricting Visas for Pregnant People

February 5, 2020:

Over 150 organizations have issued a joint statement calling on Mike Pompeo to rescind a regulation that makes it tougher for pregnant people to visit the U.S. on tourist visas, which will predominantly impact travelers from Asia, Africa and Latin America. The Trump administration asserts that the regulations are aimed at cracking down on "birth tourism."

According to the Wall Street Journal:

The new rules direct consular officers in foreign embassies to deny tourist visas, known as B visas, to any pregnant woman they believe is looking to travel to the U.S. to give birth. It will be the responsibility of the pregnant woman to convince officers she wants to visit the U.S. for a primary reason other than to give birth.

Because the U.S.'s Visa Waiver Program enables most citizens from European countries and wealthy Asian countries (Japan, Singapore, South Korea and Taiwan) to enter the U.S. for 90 days without a visa, the National Asian Pacific American Women's Forum, the National Latina Institute for Reproductive Health and over 150 other organizations that work on immigration, reproductive health, rights and justice, workers' rights, civil liberties and human rights have criticized the regulations as "thinly veiled racist and xenophobic attacks on the health, dignity, and well-being of pregnant people in other, largely non-European countries and immigrant women of color and their families."

Another problem with the regulations is that they give consular officials significant discretion, and decisions are virtually non-reviewable. Officials can deny visas if "they have reason to believe [the individual] intends to travel for [the purpose of obtaining citizenship for the child]." The Wall Street Journal quoted a senior state department official who said that "[v]isual cues can be enough for an officer to ask questions about pregnancy," but officers "won’t use pregnancy tests."

The joint statement criticizes the regulations for opening the door to racial and gender profiling, body shaming" and "invasive and coercive questioning."  Last month, a woman boarding a flight in Hong Kong to the U.S. island of Saipan was forced to take a pregnancy test before boarding the plane after she was told that the test was required for women "observed to have a body size or shape resembling a pregnant woman." 

Because the rule constitutes a "substantial change in policy" without "any clear national security rationale," leading Democratic Senators have called for suspension of the rule until additional information is obtained.  The letter notes that the State Department failed to provide support for its “unsubstantiated claims of so-called ‘birth tourism’ often advanced by nativist, restrictionist groups and provided no data corroborating the existence of a widespread problem or national security risk.” The letter also expressed concern that "Department officials were unable to explain how consular staff would implement this sensitive policy without discriminating against pregnant women, or impacting visitor visa applicants traveling to the United States for medical treatment."

 

 

Supreme Court Will Consider Trump Administration Rule Allowing Employers to Opt Out of Contraceptive Coverage

New York Times (Jan. 17, 2020): Supreme Court to Consider Limits on Contraceptive Coverage, by Adam Liptak:

Last Friday, the Supreme Court announced that it will hear two consolidated cases considering a Trump Administration rule that allows employer to opt out of the Affordable Care Act's contraceptive mandate based on religious or moral objections. 

Last May, the Third Circuit blocked the regulations and issued a nationwide preliminary injunction.

The Trump Administration is arguing that the regulations are authorized by the ACA and required by the Religious Freedom Restoration Act.  While the case presents interesting policy questions about whether and when employers can assert moral or religious objections in order to opt out of a statute of general application, the legal issues that the Court will consider are whether there was statutory authority under the ACA or RFRA to issue the regulations and whether the Administration complied with Administrative law requirements.

Amicus Brief filed by Members of Congress invites the Supreme Court to overrule Roe and Casey, what is really making the Court’s abortion precedent “unworkable”?

By Cynthia Soohoo (January 10, 2020)

Last week over 200 federal lawmakers filed an amicus brief inviting the Supreme Court to overrule its 1973 case Roe v. Wade, which recognized woman’s fundamental right to access abortion. The brief, signed by roughly 80% of Republicans in Congress and 2 Democratic House Members, takes the position that the “undue burden” standard that the Court applies to determine if abortion restrictions are constitutional is “unworkable” and so “vague and opaque” that the Court should not only reconsider the undue burden standard but the right to abortion itself.

The brief was filed in June Medical Services v. Gee which addresses the constitutionality of a Louisiana law requiring that doctors who perform abortions have admitting privileges at hospitals within 30 miles from where the procedure is performed and will be argued before the Court in early March. The brief’s extraordinary request is not surprising given that it was written by Americans United for Life, an anti-abortion public interest law firm that has led the fight to overturn Roe v. Wade since the 1970s. But the brief’s argument is ironic given strong evidence that to the degree that Roe and Casey can be deemed unworkable what has made it so is the staunch refusal of anti-choice activists to accept the decisions and the extreme politicization of abortion so that changes in the Supreme Court’s composition raise expectations that states and lower courts need not follow the law.

The refusal to accept Roe’s core holding, despite repeated reaffirmance by the Supreme Court, is illustrated by the claim made in the Legislators’ Brief that “Roe did not actually hold that abortion was a ‘fundamental’ constitutional right, but only implied it.” Not only have AUL and other anti-abortion groups refused to accept Roe, since the 1970s, they have consistently churned out model bills creating different types of abortion restrictions designed to undermine access to abortion and test the limits of Roe. After Casey allowed states to adopt pre-viability restrictions on abortion to protect women’s health as long as the restrictions do not impose an undue burden on abortion access, AUL encouraged states to pass new health regulations specifically targeting the provision of abortion. Known as TRAP laws, these laws do not prohibit abortions, but they impose regulatory requirements that make it difficult or impossible for the doctors who provide abortions to stay in business, raising the question of whether TRAP laws can create an unconstitutional undue burden.

This is the question that the 2016 case, Whole Woman’s Health v. Hellerstedt resolved. In doing so, the Supreme Court clarified that courts applying the undue burden standard should determine whether a challenged law advances the state’s purported interest and then balance the laws’ benefits with the burden it imposes on abortion access. After applying the standard, the Supreme Court held that an admitting privilege law that is virtually identical to the law challenged in June Medical Services was unconstitutional because the law provided no health benefit and imposed numerous obstacle in the path of a woman seeking an abortion.

Contrary to claims that the undue burden standard is “unworkable,” in 2016 and early 2017, courts had no problem applying the standard, especially in cases involving admitting privileges. After Whole Woman’s Health, the Supreme Court declined to hear cases challenging decisions striking down admitting privilege laws in Wisconsin and Mississippi.  Alabama’s Attorney General dropped an appeal of an admitting privilege case, stating that “There is no good faith argument that Alabama’s law remains constitutional in light of the Supreme Court’s ruling.” Tennessee dropped a challenge to an admitting privileges law, and where states refused to drop cases, courts struck down admitting privilege laws.

But application of the undue burden standard and respect for Roe and Casey shifted when the Supreme Court’s composition changed.  After Justice Kavanaugh joined the Court in late 2018, legislatures rushed to pass even more extreme laws that go to the heart of Roe’s core holding that a woman has a right to choose an abortion prior to fetal viability. These laws included a total abortion ban in Alabama and multiple state bans on abortion just a few weeks into pregnancy. Illustrating just how cavalier states became about complying with Supreme Court precedent, in 2019 Ohio passed a 6 week abortion ban despite the fact that an identical bill had been vetoed the year before by its former Governor John Kasich, an anti-choice Republican, because the law was unconstitutional.

Even though lower courts have struck down the extreme abortion bans laws, states have become more aggressive in continuing legal challenges, perhaps in hopes that the cases will work their way up to the reconstituted Supreme Court. This leads us back to June Medical Services and the argument in the Legislators’ Brief that the Supreme Court should reconsider its precedents because the undue burden standard has become unworkable. As recognized by dissenting Fifth Circuit Judge Patrick Higginbotham, who was part of the Fifth Circuit panel that heard June Medical Services below, the application of the undue burden standard after Whole Woman’s Health is “straightforward.” What is making it unworkable is the expectation that the newly constituted Roberts court will be open to the invitation to overturn Roe and Casey. Hopefully, the invitation will be declined.

Amicus Briefs filed in Gee v. June Medical

(December 2, 2019):

Yesterday, 27 amicus briefs were filed with the Supreme Court in June Medical Services v. Gee .  The case asks the Court to determine the constitutionality of a Louisiana law that requires doctors performing abortions to have admitting privileges in nearby hospitals. Although the Court found a similar provision unconstitutional in the 2016 case Whole Woman's Health v. Hellerstedt, the 5th Circuit upheld the Louisiana provision. June v. Gee will be the Court's first opportunity to decide an abortion case since Justice Gorsuch and Kavanaugh joined the Court.

The briefs were filed in support of June Medical's position that the law is unconstitutional and reflect a broad range of interests and perspectives.  In addition to briefs filed by constitutional law experts, federal court scholars and the ABA, two briefs were filed on behalf of women who have had abortions. Other amici include: reproductive justice organizations and scholars, Civil Rights, Women's Rights and LGBTQ organizations, reproductive health organizations, medical professionals, social science organizations, members of Congress, former federal officials and 21 states and the District of Columbia.  Catholics for Choice submitted a brief on behalf of religious organizations from a broad range of faiths.  The case is scheduled for oral argument on March 4.

 

SCOTUS Will Hear An Abortion Rights Case With Major Implications

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

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

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

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

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

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

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

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

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

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

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

Mexico's Supreme Court Affirms Abortion Access as Right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alabama abortion law temporarily blocked by federal judge

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. 

California Governor Signs SB 464 into Law, Requiring Perinatal Health Providers To Receive Implicit Bias Training

Essence (Oct. 10, 2019): California Now Requires Perinatal Health Providers To Receive Implicit Bias Training, by Tanya A. Christian: 

California Governor Gavin Newsom signed the "California Dignity in Pregnancy and Childbirth Act" (SB 464) earlier this month, which mandates implicit bias training for health care providers serving pregnant persons. State Senator Holly Mitchell authored the bill. Reproductive justice-oriented groups, including Black Women for Wellness, NARAL Pro-Choice America, Act for Women and Girls, as well as California Nurses Association all backed the law, which earned unanimous support in the state legislature. 

The law is aimed at reducing maternal mortality among Black women--who face a disproportionately high rate--in the United States. It will require all care providers to both engage with bias training and improve their data collection processes in order to better understand the causes behind pregnancy-related deaths.

"As it stands, the U.S. leads the developed world in the number of pregnancy-related deaths. Black women compromise a large portion of those casualties, presenting a risk of mortality that is three to four times that of White women."

California currently has the lowest maternal mortality rate in the country and hopes to improve it further through SB 464.

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. 

Dutch Doctor Provides Abortion Pills to U.S. Women, Sues FDA

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.

‘We Are Headed Toward a Public Health Crisis’: Title X Clinics Grapple With Trump’s ‘Gag Rule’

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.

Nearly seven percent of U.S. women say first sexual experience was forced

Sept. 16, 2019 (AP News): Many U.S. women say first sexual experience was forced in teens, by Lindsey Tanner: 

A new study published in JAMA Internal Medicine reports that "the first sexual experience for 1 in 16 U.S. women was forced or coerced intercourse in their early teens"--and often perpetrated by persons nearly a decade senior to the survivors.

The national survey conducted for the study did not use the term rape when asking participants about forced sexual experiences but identified a first sexual intercourse experience as "involuntary." Almost half of the participants who reported involuntary intercourse were physically held down during the experience, while just over half of the same respondents described being "verbally pressured to have sex against their will." 

The lead author of the study, Dr. Laura Hawks, affirms that “any sexual encounter (with penetration) that occurs against somebody’s will is rape. If somebody is verbally pressured into having sex, it’s just as much rape."

The study goes on to show that persons whose first sexual intercourse experiences amounted to rape reported "fair or poor health" twice as often as other women. The same women also "had more sex partners, unwanted pregnancies and abortions, and more reproductive health problems including pelvic pain and menstrual irregularities than women whose first sexual experience wasn’t forced."

The new study adds to the findings of prior research that identified a range of long-term effects of sexual assault, including "social isolation, feelings of powerlessness, stigmatization, poor self-image and risky behavior, which all may increase risks for depression and other mental health problems"

An editorial in this issue of the Journal "notes that the study lacks information on women’s health and any abuse before their first sexual encounter." It also doesn't include data on sexual violence after the women's first encounters, which, the editorial notes, may further "contribute to health problems."

The Journal calls for further research to fully understand and address the "range and consequences," particularly as related to long-term health outcomes, of sexual assault on survivors. 

Sex education specialists have responded emphasizing the need for inclusive education in U.S. schools that teaches children about consent among other healthy sexual practices.