Reproductive Rights Prof Blog

Will the FDA Permanently Remove In-Person Dispensing Requirements for Medication-Induced Abortions?

By Kelly Folkers (Aug. 10, 2021)

As the COVID-19 pandemic continues, increasing numbers of patients are seeking care through telemedicine, allowing them to communicate with their doctors and be prescribed medicines without leaving home. Access to abortion medication is a part of this trend, with more pregnant people seeking to terminate early pregnancies by requesting access to medication they can self-administer at home. Despite the FDA’s decision earlier this year not to enforce a previous requirement that abortion medications be administered in person, access to medication-induced abortion remains vastly inequitable as conservative state legislatures target the practice.

Current Food and Drug Administration (FDA) regulations on abortion medication officially require that the first dose be administered in a healthcare setting or under the supervision of a provider specifically certified to prescribe the medication. In 2020, the ACLU filed a lawsuit on behalf of the American College of Obstetricians and Gynecologists (ACOG) challenging the in-person dispensing requirement, which resulted in a nationwide injunction preventing the FDA from enforcing the rule. But the Supreme Court lifted the injunction in January 2021 and held, in a 6-3 decision, that the district court should have deferred to the FDA’s expertise, avoiding the question of whether the rule imposed an undue burden on the constitutional right to abortion. After President Biden took office, the FDA announced in April 2021 that it would not enforce the in-person dispensing requirement for the duration of the COVID-19 pandemic.

The agency is now considering permanently removing the in-person dispensing requirement. But as access to abortion hangs in a precarious balance as the Supreme Court prepares to hear a direct challenge to Roe v. Wade later this year, have passed laws in 2021 targeting medication-induced abortions.

There are two types of abortion: surgical and medication. While a surgical abortion is a medical procedure that must be performed in a clinic or medical office, the procedure for most medication-induced abortions requires that patients take two medicines, mifepristone and misoprostol, at least 24 hours apart, respectively. ACOG has stated in its most recent guidance on medication-induced abortions, that patients can safely and effectively take abortion medications at home. But the FDA issued a Risk Evaluation and Mitigation Strategy (REMS) for mifepristone when it was approved in 2000, requiring that the medication be ordered, prescribed, and dispensed under the supervision of a health care provider who is specifically certified to administer it. The agency issues REMS to “reinforce medication use behaviors and actions that support safe use of that medication.” While there have been some reported adverse events, including a handful of deaths, associated with use of mifepristone, the medication is widely considered to be safe and effective, with over 3.7 million patients having been prescribed the drug since its approval.

Though the FDA announced that it would not be enforcing the REMS on mifepristone during the pandemic, even before the pandemic, the restriction had long frustrated abortion rights advocates, who believe it is too restrictive and politically motivated. In 2019, former FDA Commissioner Dr. Jane Henney argued in the New England Journal of Medicine that the restrictions on distribution of mifepristone made at its approval in 2000, before the drug was widely used and in the United States and additional safety and efficacy data collected, may no longer be appropriate.

Despite ACOG’s assertion that the in-person dispensing requirement has no medical benefit for patients, conservative state legislatures have used the Supreme Court’s decision to target medication-induced abortions. Montana has effectively banned telehealth for abortion. Ohio has a similar law in effect, which is being challenged by Planned Parenthood and other advocacy groups in court. Indiana not only required that the first dose of medication be administered in the presence of a healthcare professional, patients must be advised that their abortions can be reversed with progesterone, which is not scientifically supported. The law has since been blocked by a federal judge. At least 20 states prevent telemedicine appointments for abortion pill prescriptions, and more than 30 require that physicians must write the prescriptions, rather than nurse practitioners or physician assistants who are otherwise able to prescribe medication.

Though laws limiting access to medication-induced abortion continue to threaten reproductive rights, there is hope that under the new Democratic Administration, the FDA will end the restrictive in-person dispensing requirement.

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.

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. 

The Flood of Court Cases That Threaten Abortion

New York Times (Mar. 28, 2019): Opinion: The Flood of Court Cases That Threaten Abortion, by Linda Greenhouse:

Within the next few weeks, Linda Greenhouse writes, a challenge to Louisiana’s abortion law will arrive at the Supreme Court as a formal appeal. Louisiana requires that doctors who perform abortions in the state "do the impossible by getting admitting privileges in local hospitals." The law, she writes, is “substantially similar” to the Texas law the Supreme Court declared unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016, and yet the United States Court of Appeals for the Fifth Circuit "implausibly upheld the Louisiana law nonetheless."

A majority of the Fifth Circuit is at war with the Supreme Court’s abortion precedents, writes Greenhouse, and was even before the Trump administration filled five vacancies on the appeals court. The Trump-appointed judges "clearly understand their marching orders": one of those judges, James C. Ho, wrote in a published opinion on “the moral tragedy of abortion,” a gratuitous comment that Greenhouse says "served to make him stand out from the crowd."

Meanwhile, Chief Judge Ed Carnes of the United States Court of Appeals for the 11th Circuit began his opinion striking down an Alabama law that criminalizes the procedure most commonly used to terminate a pregnancy in the second trimester: “Some Supreme Court justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.” In a footnote to his 36-page opinion, Judge Carnes refused to call doctors who perform abortions either “doctors” or “physicians,” noting that “some people” regarded those designations “as inapposite, if not oxymoronic in the abortion context.” He called them “practitioners.” He also described the constitutional right to abortion as something the Supreme Court had decided to “bestow on women.”

Alabama has appealed the decision, Harris v. West Alabama Women’s Center, to the Supreme Court, noting in its brief that eight other states have enacted the same law. The justices will consider in mid-April whether to hear the case.

Greenhouse, in her decades of reporting on the federal judiciary, says that she cannot "remember seeing such expressions of outright contempt for the Supreme Court. In this age of norm-collapse, something has been unleashed here."

In another appeal pending before the Supreme Court, this one from Indiana, the Seventh Circuit struck down a law that makes it a felony for a doctor to perform an abortion if the patient wants to terminate her pregnancy because the fetus has been diagnosed with Down syndrome or “any other disability.”

In an opinion concurring with the majority decision, Judge Daniel Manion accused the Supreme Court of making abortion “a more untouchable right than even the freedom of speech.” While the outcome of this case was “compelled,” he said, “it is at least time to downgrade abortion to the same status as actual constitutional rights.”

Indiana’s appeal, Box v. Planned Parenthood of Indiana and Kentucky, arrived at the Supreme Court in October. The justices have taken it up at their private conference eight times and will consider it again at the conference scheduled this Friday.

Greenhouse is most concerned by the recent Sixth Circuit decision, where that court upheld an Ohio law that bars state public health money from going to any organization that performs abortions, namely Planned Parenthood. Planned Parenthood is the largest provider of H.I.V. testing in Cleveland, Akron and Canton. It performs abortions at three of its 27 clinics in the state.

Writing for the court, Judge Jeffrey Sutton found that Planned Parenthood had no right to invoke the doctrine of unconstitutional conditions because while women have a right to obtain abortions, neither Planned Parenthood nor any other abortion provider has the right to perform them.

Greenhouse concludes that she doesn’t "know whether Planned Parenthood will appeal the Ohio decision, Planned Parenthood v. Hodges."

"It’s received little attention — not surprisingly. As framed by the appeals court, it’s not the kind of issue that sends culture warriors to the barricades. But there’s no chance that the justices will miss its significance. Is it the small-target case they have been waiting for? Could be."

In Nigeria, Trump administration policies bite hard

Devex (Feb. 5, 2019): In Nigeria, Trump administration policies bite hard, by Paul Adepoju: 

Trump's policies limiting reproductive rights and funding for reproductive health and education services continue to wreak havoc on foreign initiatives aimed at promoting family planning, slowing population growth, and educating girls and women.

Nigerian hospitals and NGOs are facing severe shortages of reproductive health supplies since Trump both cut funding to the United Nations Population Fund (UNFPA) and implemented the "global gag rule," withdrawing funding from any agency that offers abortion-related education or services. 

Nigeria, a middle-income country facing a population boom, lost over 60% of its funding for family planning supplies and services in the year after Trump pulled UNFPA funding. "In 2016, when UNFPA got its last support from the U.S. government, it was able to spend $15,444,880 on family planning in Nigeria. In 2017, it spent just $6,132,632."

Trump justified these funding cuts by promulgating theories that the UNFPA cooperated with coercive abortions and involuntary sterilization, which the UNFPA categorically denies and is readily backed up by multiple human rights organizations.

The rate of contraceptive usage in Nigeria is already very low, and the African country also faces one of the highest maternal mortality rates in the world. 

Several organizations--including Generation Initiative for Women and Youth Network--are on-the-ground in Nigeria working to educate women and provide safe and reliable access to health care to shift these statistics. Their work, though, has been severely limited by the loss of funding as a result of U.S. policies under the Trump administration. 

Erin Williams, program officer for grantmaking and international partnerships at the International Women's Health Coalition, told Devex: 

As a result [of these policies], Nigerian health services will continue to fragment, deteriorate, and decrease, increasing the burden on vulnerable women and girls in search of comprehensive and quality health care. More women will look for contraceptive and pregnancy alternatives outside the medical and legal system.

While much of the justification for pulling U.S. funding relies on anti-abortion ideology, the implications of the policies are much farther-reaching than "just" abortion. Nigeria has slowed in its ability to address maternal health needs generally, including instances of gender-based violence, as well in its ability to address wide-reaching disease concerns like the spread of malaria and tuberculosis. Furthermore, the policy-shift has actually led to increased numbers of abortions throughout Sub-Saharan Africa in the countries hit hardest by the loss of funding. 

Congress this week is set to introduce the Global Health, Empowerment and Rights Act, which would repeal the global gag rule permanently and help to ensure consistent reproductive health care around the world. It is unlikely to be passed by the Republican-controlled Senate, however, or to be signed by Trump. 

NY’s Reproductive Health Act is Not Radical; It Simply Recognizes that the Lives and Dignity of Pregnant People Count Too

NY’s Reproductive Health Act is Not Radical; It Simply Recognizes that the Lives and Dignity of Pregnant People Count Too (Feb. 7, 2019), by Cynthia Soohoo:

Not surprisingly, President Trump’s attack on New York’s Reproductive Health Act during Tuesday night’s State of the Union address blatantly mischaracterized the RHA. But it also underscores a glaring gap in anti-abortion advocates’ pro-life views -- the right to life and dignity of people who are pregnant.

The RHA continues to recognize a state interest in fetal life and prohibits abortions after 24 weeks in almost all circumstances. However, the law also recognizes that in some situations, denying a pregnant person the ability to end a pregnancy imposes serious and irreparable harm on her, including situations where the pregnancy endangers her life and health. And in those situations, the state cannot force the pregnant woman to continue the pregnancy against her will. This is consistent with current Supreme Court jurisprudence and international human rights law. The UN Human Rights Committee made this explicit in a recent General Comment clarifying that while states can regulate abortions, they should not do so in a manner that violates the right to life of the pregnant person or her fundamental human rights.

The RHA does no more than protect the human rights of pregnant people. The law only allows abortions post-24 weeks in two situations. First, abortions are allowed where the fetus will not survive outside of the womb. The RHA recognizes that a woman should not be forced to continue what was often a wanted pregnancy -- knowing that the fetus will not survive -- against her will. In such cases, the state’s interest in protecting a viable fetus is not at issue, and human rights experts have held that denying a woman access to an abortion in these circumstances is cruel, inhuman and degrading treatment.  

Second, the RHA allows a woman to have an abortion where continuing the pregnancy endangers her life or health. Some women may choose to continue pregnancies in these circumstances. But the RHA acknowledges that the pregnant person must be allowed to make her own choice taking into account the risk that she faces and the impact her death or disability would have on her family and community.

In both situations covered by the RHA, human rights experts have held that state denial of an abortion violates the human rights of the pregnant person. In fact, concern over state prohibition of abortions in those circumstances led UN human rights experts to write to the U.S. to encourage passage of laws like the Reproductive Health Act. This is not a radical position. It is merely the recognition of the value of the life and dignity of pregnant people. The failure of critics of the RHA to understand this is a glaring gap in their “pro-life” views.

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.

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.

Kavanaugh 'abortion-inducing drug' comment draws scrutiny

CNN (Sept. 7, 2018): Kavanaugh 'abortion-inducing drug' comment draws scrutiny, by Ariane de Vogue & Veronica Stracqualursi:

Brett Kavanaugh's views on birth control drew scrutiny on Thursday as abortion rights advocates charged that the Supreme Court nominee referred to contraceptives as "abortion-inducing drugs."

The controversy came as Kavanaugh discussed Priests for Life v. HHS, a case involving the application of the Religious Freedom Restoration Act (RFRA) to the Affordable Care Act in which Kavanaugh wrote a dissenting opinion. The government's regulations included a requirement that all employers provide their employees with health insurance that covers all forms of FDA-approved birth control, including birth control pills, IUDs, and hormonal injections. In his dissent, Kavanaugh expressed sympathy for the religious challengers.

Asked about the case by Senator Ted Cruz (R-TX), Kavanaugh said he believed "that was a group that was being forced to provide certain kind of health coverage over their religious objection to their employees. And under the Religious Freedom Restoration Act, the question was first, was this a substantial burden on the religious exercise? And it seemed to me quite clearly it was."

"It was a technical matter of filling out a form in that case," he continued. "In that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were, as a religious matter, objected to."

Although no senators present at the hearing questioned Kavanaugh's usage of the term "abortion-inducing drugs," abortion rights advocates said Kavanaugh mischaracterized the case and also used a controversial term used by groups opposed to abortion.

"The argument for the lawyers of Priests for Life was that they objected to all birth control," Beth Lynk, a spokeswoman for Planned Parenthood Federation of America, said in a statement. "In Kavanaugh's testimony his description of their objection characterized all types of birth control as 'abortion inducing drugs.'"

 

"In reaching for a term to describe all types of birth control, the word he chose was 'abortion inducing drugs,"' she said.

 

"Saying 'abortion-inducing drugs' to describe contraception is straight out of the anti-choice, anti-science phrase book used to restrict women's access to essential health care," the Center for Reproductive Rights said on Twitter Thursday.

 

Kavanaugh used similar language to answer on Thursday to describe the Priests for Life position in his 2015 dissent.

 

"By regulation, that insurance must cover all FDA-approved contraceptives, including certain methods of birth control that, some believe, operate as abortifacients and result in the destruction of embryos," he wrote.

 

336 Law Professors Write Letter Opposing Kavanaugh's Nomination

Law professors around the country joined together in penning a letter to Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) urging them to vote "no" on Kavanaugh's Supreme Court nomination. 

The letter highlights the imminent danger to reproductive health should Kavanaugh be confirmed.  He would be expected to vote in support of efforts to overturn long established reproductive-rights precedents like Roe. Although Kavanaugh has publicly stated his support for stare decisis, the authors note that justices who support precedent do not always shy away from overturning it.

The overturning of Roe or Casey--both of which upheld the right to choose and based their decisions on the importance of protecting the principle that "matters involving the most intimate and personal choices a person may make in a lifetime...are central to the liberty protected by the Fourteenth Amendment"--could also implicate harmful shifts in the subsequently upheld rights to privacy relating to parenting, family planning, and same sex relationships. 

In 1965, the lawyers cite, "illegal abortion in the United States accounted for 17% of all deaths attributed to pregnancy and childbirth." As officially reported numbers, the actual mortality rate due to illegal abortion was likely much higher. 

The threat to reproductive health and freedom is particularly acute for women of color, poor women, and rural women, the attorneys point out, citing disparate access to quality medical care based on racial and class lines as well as the heightened maternal mortality rate for black women. 

The letter states that women in Maine and Alaska in particular may be heavily affected, as both states are large and have "widely dispersed populations, creating challenges for health care." 

In conclusion, the authors write: 

A "no" vote is necessary to protect women and families throughout this country. We urge you, as Senators who have long supported the right to choose, to make your legacy the protection of these fundamental constitutional rights for generations to come. 

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."

Democratic governors warn: We'll pull our states out of Title X

July 31, 2018 (Politico): Democrats warn: We'll pull our states out of Title X, by Dan Diamond:

Three Democratic governors are threatening to pull out of the Title X federal family planning program if the U.S. Department of Health & Human Services (HHS) moves forward with its proposal to prohibit referrals for abortion care and make other changes that would exclude abortion providers from participating in the program.

Washington state Governor Jay Inslee, Hawaii Governor David Ige, and Oregon Governor Kate Brown said in separate statements that if the legal battle to prevent the Trump administration's Title X changes fails, their states would not be able to participate in the “unethical” Title X program.

“We would be left with no choice but to refuse to participate in an unethical Title X program," Inslee said in a statement Monday. “Hawai‘i will not accept federal funds for these programs if the proposed rules are implemented,” Ige said. “It would leave me no choice but to act in the best interests of the citizens of Oregon and our state law, and withdraw our state’s participation from an unethical, ineffective Title X program that reduces access to essential preventive health services,” Brown said.

New York Governor Andrew Cuomo issued a similar warning that his state's program would be "impossible" to continue, although he did not explicitly vow to pull New York out of the program.

The moves intensify a quickly escalating battle between the Trump administration and Title X program participants that also offer abortion care over the future of the family planning program. The deadline for public responses to the Trump administration's proposed changes was Tuesday, July 31.

Attorneys general from California, Connecticut, Delaware, Hawai'i, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, North Carolina, and the District of Columbia on Monday also jointly issued a comment in opposition to the proposed rule, which can be found here.

HHS Refuses to Release Documents on the New Office of Civil Rights (OCR)

The Department of Health and Human Services (HHS) announced the opening of a new division in January of this year: The Office of Civil Rights (OCR). The OCR's primary mandate is to enforce refusal of care laws. 

Refusal of care laws essentially empower medical providers to deny care to patients if they disagree with the ethics of a particular procedure based on their religious grounds. The purported goal of these laws is to protect a healthcare provider from being forced into providing care that "violates their conscience." 

This is an Executive-ordered decision that does not require legislative or judicial approval to go into effect or to implement its new rules and regulations.

Critics of refusal of care laws express concern that these requirements do not simply "protect" health care providers consciences, but can instead seriously harm patients. These laws may lead to a pharmacist refusing to fill a birth control prescription, a doctor refusing hormone therapy to a transgender patient, limitations placed on services to LGBTQ persons and partners, and of course abortion services may also become more limited.

HHS does not require providers who refuse treatment to refer patients to other providers or provide any information at all on other providers.

The OCR further has authority to initiate compliance reviews of any organization receiving federal funding to ensure conformity to the new rules. 

Earlier this month, the Center for Reproductive Rights (CRR) and the National Women's Law Center (NWLC) filed a lawsuit against HHS for refusing to release records pertaining to the creation of the OCR. The organizations initially requested these records via a FOIA request in January 2018. The CRR and NWLC seek knowledge of why the new division was needed, how the OCR operates, allocates funding, and may be influenced by outside groups.

"We’re filing this lawsuit to force the Trump-Pence administration to justify why it’s using resources to fund discrimination, rather than to protect patients," said Gretchen Borchelt, NWLC Vice President for Reproductive Rights and Health. 

HHS's new Office of Civil Rights follows additional moves by the Trump administration to limit equitable access to reproductive health care, including promoting the "Global Gag Rule," its domestic counterpart, and establishing regulations aimed at severely limiting funding to Title X programs. 

Call for Public Comments on Proposed Rule to Limit Title X Funding

Last month the Trump administration proposed a rule prohibiting the granting of federal Title X family planning funds to family planning providers that also perform abortions. The so-called “Domestic Gag Rule” would create new, unnecessary barriers for patients seeking access to birth control and other services from their trusted reproductive health care providers. In addition, the rule would prevent doctors and nurses across the country who receive federal funding from referring patients for safe, legal abortions. 

 

While the new rule is scheduled to go into effect immediately upon publishing of the final rule, the Department of Health and Human Services (HHS) is required to take public comments into consideration before making the rule permanent. 

 

The Center for Reproductive Rights has posted links to assist those interested in sending comments which provide draft language and templates.

1. Send a comment to HHS opposing the proposed rule through the Center for Reproductive Rights website using the draft language linked here. 
2. Submit a comment on behalf of your organization urging HHS to rescind the rule. A template is available here. If you need support coordinating the ask within your association or developing a comment, please do not hesitate to reach out to the Lawyers Network team at lawyersnetworkinfo@reprorights.org. 

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.”

Steps the Next Supreme Court Might Take to Roll Back Abortion Rights

New York Magazine (Jun. 27, 2018): Steps the Next Supreme Court Might Take to Roll Back Abortion Rights, by Ed Kilgore: 

With the announcement of Justice Kennedy's imminent retirement comes the prospect of a much more conservative Supreme Court, particularly in relation to reproductive rights. Justice Kennedy stood in the majority of the 2016 Whole Women's Health v. Hellerstedt decision, which reaffirmed basic abortion access rights. Trump has promised to pursue the reversal of Roe v. Wade, though, and has stated his intentions to nominate a similarly-minded next justice. 

Many states have recently enacted stricter abortion access requirements--like Louisiana's legislation banning abortions after 15 weeks of pregnancy or Iowa's fetal heartbeat ban. "Such laws are aimed at setting up a challenge to Roe if the Supreme Court lurches to the right — which is now an imminent possibility."

While it's unlikely that, even under a more conservative court, Roe would be immediately overturned, a shift to the right on the Supreme Court will likely lead to affirmation of new, state-level abortion restrictions. For example, rather than overturn Roe, which is backed by additional, subsequent precedent in 1992's Casey and 2016's Hellerstedt, the court might instead find an opportunity to reverse Hellerstedt, as the more recent decision. Such a move might reinvigorate efforts to enact Targeted Regulation of Abortion Providers, likely forcing abortion providers out of business with burdensome requirements and eliminating much abortion access, especially in already-conservative states.

Either way, if Trump nominates an anti-Roe Supreme Court candidate this year, and the Senate approves them, we can expect many more legal battles on the availability of abortion. "With one SCOTUS appointment and one decision, that could all change, and we could enter a period of abortion-policy activism unlike anything America has seen in decades."

Leading Republicans Join Democrats in Pushing Trump to Halt Family Separations

New York Times (Jun. 17, 2018): Leading Republicans Join Democrats in Pushing Trump to Halt Family Separations, by Peter Baker:

On Sunday, leading figures of both parties demanded that President Trump halt his administration’s practice of separating children from their parents when apprehended at the border, as the issue further polarized the already divisive immigration debate in Washington.

Republican lawmakers, the former first lady Laura Bush, a conservative newspaper and a onetime adviser to Mr. Trump joined Democrats in condemning family separations that have removed nearly 2,000 children from their parents in just six weeks. The administration argued that it was just enforcing the law, a false assertion that Mr. Trump has made repeatedly.

Even Melania Trump weighed in, saying she “hates to see children separated from their families and hopes both sides of the aisle can finally come together.” Mrs. Trump “believes we need to be a country that follows all laws, but also a country that governs with a heart,” the first lady’s office said in a statement.

The issue took on special resonance on Father’s Day as Democratic lawmakers visited detention facilities in Texas and New Jersey to protest the separations and the House prepared to take up immigration legislation this week. Pictures of children warehoused without their parents in facilities, including a converted Walmart store, have inflamed passions and put the administration on defense.

By laying responsibility for the situation on “both sides,” Mrs. Trump effectively echoed her husband’s assertion that it was the result of a law written by Democrats. In fact, the administration announced a “zero tolerance” approach this spring, leading to the separations.

Laura Bush, the last Republican first lady, spoke out forcefully against the practice on Sunday in a rare foray into domestic politics, comparing it to the internment of Japanese-Americans during World War II. “I live in a border state,” she wrote in a guest column in The Washington Post. “I appreciate the need to enforce and protect our international boundaries, but this zero tolerance policy is cruel. It is immoral. And it breaks my heart.”

Senator Susan Collins, Republican of Maine, deplored separations on Sunday, except in cases where there is evidence of abuse or another good reason. “What the administration has decided to do is to separate children from their parents to try to send a message that, if you cross the border with children, your children are going to be ripped away from you,” she said on “Face the Nation” on CBS. “That is traumatizing to the children, who are innocent victims. And it is contrary to our values in this country.”

Contrary to the president’s public statements, no law requires families to be separated at the border. Attorney General Jeff Sessions’s “zero tolerance” announcement this spring that the government will prosecute all unlawful immigrants as criminals set up a situation in which children are removed when their parents are taken into federal custody.

Kirstjen Nielsen, the secretary of homeland security, rejected responsibility for the separations in a series of tweets on Sunday. “We do not have a policy of separating families at the border,” she wrote. “Period.”

But there have been reports of people arriving at the ports of entry asking for asylum and being taken into custody, and some of the designated ports are not accepting asylum claims. In those cases, migrants sometimes cross wherever they can and, because it is not an official border station, are detained even though they are making a claim of asylum. Many would-be asylum applicants do not know where official ports of entry are.

Democrats are trying to focus attention on the separation policy as an example of what they call Mr. Trump’s extremist approach to immigration. Senator Dianne Feinstein of California has collected 43 Democratic sponsors for legislation to limit family separations.

Senators Jeff Merkley of Oregon and Chris Van Hollen of Maryland led a group of Democratic lawmakers to a detention facility in Brownsville, Tex., on Sunday but were not allowed to talk with children held there. Seven House Democrats visited a detention facility in Elizabeth, N.J. and said they were blocked for nearly two hours before being allowed to see parents separated from their children.

Anthony Scaramucci, who served briefly as White House communications director last year, said separating children from their families is not “the Christian way” or “the American way,” and made clear he thinks Mr. Trump can end it on his own. “The President can reverse it and I hope he does,” he wrote on Twitter.

The conservative editorial page of The New York Post, owned by Rupert Murdoch’s News Corporation, agreed on Sunday. “It’s not just that this looks terrible in the eyes of the world,” it wrote. “It is terrible.”

Mr. Trump has said in recent days that Democrats should agree to his panoply of immigration measures, including full financing for a border wall and revamping the system of legal entry to the country, in effect making clear that any legislation addressing family separation must also include his priorities.

A top adviser to Mr. Trump said on Sunday that the president was not using the family separation as leverage to force Democrats to come to the table on other policy disputes, rebutting an unnamed White House official quoted by The Washington Post.

Trump emphasizes importance of 2018 victories to anti-abortion group

May 22, 2018 (CBS News): Trump emphasizes importance of 2018 victories to abortion-opposing group, by Kathryn Watson: 

Speaking to the anti-abortion Susan B. Anthony List ("SBA List") at that organization's 11th Annual "Campaign for Life" Gala Tuesday night in Washington, D.C., President Trump emphasized the importance of the 2018 midterm elections. The president's remarks come shortly after his administration announced it intends to pull federal funding from health facilities that make referrals to abortion clinics.

"We must work together to elect more lawmakers who share our values," he said to the audience.

The federal funding rule change is being cheered by many anti-abortion activists and lawmakers, as it will pull funding from groups like Planned Parenthood. The move, White House press secretary Sarah Sanders said last week, "would ensure that taxpayers do not indirectly fund abortions." Critics of the administration and of anti-abortion policies say the change could seriously restrict funding for essential women's health services like cancer screenings.

"My administration has proposed a new rule to prohibit Title X funding from going to any clinic that performs abortions," Mr. Trump said Tuesday night, to applause from his audience. 

The SBA List raises funds for federal candidates who oppose legal abortion. Vice President Mike Pence spoke to the group last year. The SBA List hasn't always supported Mr. Trump. Before he was nominated, the group urged voters to look elsewhere within the GOP for its 2016 champion, and called Mr. Trump "unacceptable."

On Tuesday night, SBA List president Marjorie Dannenfelser said the upcoming midterm elections are important, and that Roe v. Wade must be overturned.

Baltimore to join lawsuit against U.S. health agency over cuts to programs that help prevent teen pregnancy

The Baltimore Sun (Mar. 7, 2018): Baltimore to join lawsuit against U.S. health agency over cuts to programs that help prevent teen pregnancy, by Ian Duncan:

The city of Baltimore intends to join a lawsuit against President Trump filed last month by the nonprofit Healthy Teen Network. The suit was filed in U.S. District Court in Baltimore after Healthy Teen Network's federal grant--given to develop and fund the study of an app providing sex education--was significantly reduced.

Baltimore’s health department received an $8.5 million federal grant to help provide sex education for about 20,000 students over five years. Last year, the federal health agency told Baltimore that the program would be severed from its funding after three years instead, leading to a loss of $3.5 million.

The lawsuit alleges that Trump’s appointee to a senior position in the U.S. Department of Health and Human Services has reduced federal grants for programs that do not match the official’s belief that people should not have sex until they are married.

While the lawsuit by Healthy Teen Network states they did not receive a clear explanation for the funding cut, the lawyers claim that the cut in funding is directly related to the appointment of abstinence-only advocate Valerie Huber, who was appointed Chief of Staff for the Office of the Assistant Secretary of Health at the U. S. Department of Health and Human Services in June 2017.

"Dr. Leana Wen, the city’s health commissioner, said the reduction would greatly harm the department’s ability to provide services."

“We have made significant progress to reduce teen birth rates, and the last thing that should happen is to roll back the gains that have been made.”

Internal Emails Reveal How the Trump Administration Blocks Abortions for Migrant Teens

Mother Jones (Nov. 29, 2017): Internal Emails Reveal How the Trump Administration Blocks Abortions for Migrant Teens, by Hannah Levintova and Pema Levy: 

Jane Doe isn't the only teenage immigrant the Trump administration has tried to prevent from obtaining an abortion. 

While the ACLU represented Doe in her ultimately successfully case to get an abortion, they continue to fight a class-action for other similarly-situation teens. These teens are pregnant and in government custody with the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services. The ORR contracts with local shelters to house the minors.

The director of the ORR, Scott Lloyd, is an anti-abortion activist who has "changed ORR policy to prevent pregnant teens at these shelters from obtaining abortions." 

As part of the ongoing lawsuit, the ACLU has obtained government emails showing the lengths to which the current administration will go to prevent an unaccompanied minor from seeking an abortion. 

For example, ORR temporarily halted a medication abortion for one pregnant minor halfway through the procedure. In another case, ORR suggested that a pregnant minor scheduled for discharge from the shelter not be released until she had been counseled against receiving an abortion.

The ACLU says the government's efforts amount to a violation of the minors' Constitutional rights and defy Supreme Court precedent such as Roe v. Wade, which states the government cannot ban abortion. "They are effectively banning abortion for Jane Doe. I am still in shock that this is happening,” says Brigitte Amiri, a lead attorney for the ACLU. 

One of the emails, published here, includes a redacted sender questioning whether the ORR's methods of approving (or not approving) a minor's pursuit of a judicial bypass are legal. A judicial bypass allows a minor who would otherwise need a guardian's permission for an abortion to get a court's approval to seek and receive an abortion without such parental or guardian permission.

The redacted email sender says:

My understanding is that the judicial bypass was created specifically so that the young lady does not need approval from her guardian (in our case the Director of ORR) to move forward with a term of pregnancy. Has this policy been vetted by your legal department? I anticipate there would be legal challenges to this policy.

Minors represented in this case have received judicial bypasses for their abortions from the courts, however the emails show that ORR nevertheless instructed the shelters not to allow it. It's unclear how those situations were resolved.

The release of these emails makes the government's targeted policies very clear, as the ACLU continues to fight for the Constitutional rights of unaccompanied and undocumented minors.