Reproductive Rights Prof Blog

Reaching for Reproductive Justice & Coming Up Short: The Women's Health Protection Act

By Kelly Folkers (June 22, 2021)

As the country braces for the Supreme Court to hear a challenge to Roe v. Wade, Congressional efforts continue to codify the right to abortion into law. This month, Senate Democrats reintroduced the Women’s Health Protection Act (WHPA), which would prevent state governments from interfering with the right.

The reemergence of the WHPA comes as abortion rights hang in a particularly precarious balance. According to the Guttmacher Institute, state legislatures in 47 states have introduced 165 pre-viability bans since January 2021, and 83 have been enacted. At least 10 states have “trigger laws” in place that would ban abortion if the Supreme Court does overturn Roe next year.

The bill’s primary sponsors, Senator Richard Blumenthal (D-CT) and Senator Tammy Baldwin (D-WI) have reintroduced the WHPA in every Congressional session since 2013. Yet, the bill has never received a vote. Likely in reaction to the upcoming Supreme Court challenge, the 2021 WHPA has a record number of sponsors: 48 in the Senate and 176 in the House. Representatives Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX) are the bill’s lead sponsors in the House.

The bill is described as a “guarantee” of abortion rights and would make it significantly harder for individual state legislatures to impose medically unnecessary restrictions. However, this is a misnomer as it does not establish a positive right to abortion services. The WHPA only codifies the pre-existing right to abortion access without doing more to ensure access is available to all.

Instead of taking proactive steps to increase abortion access beyond the current system, the bill goes on the defensive by targeting state laws that make abortion access unnecessarily restrictive. The bill states that patients have a statutory right to services without a variety of limitations or requirements that many state legislatures have in place, like requiring patients to receive an ultrasound, to visit a clinic for a medically unnecessary reason, or to be given medically inaccurate information.

In a reaction to litigation on access impediments, the WHPA creates a framework for analyzing laws across the states. The analysis includes whether a limitation or requirement is reasonably likely to delay access to care, whether it directly or indirectly increases the cost of care, including associated costs for taking time off work, childcare, or travel, or whether it is reasonably likely to result in a decrease in the availability of abortion services in a given state or region.

Though the WHPA would be a welcome step forward, more will be needed to create true reproductive justice. The bill cites reproductive justice as the main goal, stating that reproductive justice is “a human right that can and will be achieved when all people […] have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.” Without a shift from defense to offense and the creation of true structural changes, congressional Democrats fall short of achieving their goal.

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. 

‘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.

Medication abortion reversal is "devoid of scientific support," judge rules in North Dakota

Sept. 10, 2019 (CBS News): Medication abortion reversal is "devoid of scientific support," judge rules in North Dakota, by Kate Smith: 

Legislators in North Dakota recently mandated physicians tell patients who are receiving medication abortions that the procedure may be reversed. North Dakota House Bill 1336 bases its text "on a pair of studies that have been contested by The American Medical Association and the American College of Obstetrics and Gynecology." 

Judge Daniel Hovland, on Tuesday, September 10, issued a 24-page decision granting an injunction against the bill, which he said is "devoid of scientific support, misleading, and untrue." Further elaborating that:

'State legislatures should not be mandating unproven medical treatments, or requiring physicians to provide patients with misleading and inaccurate information...The provisions of [Bill 1336] violate a physician's right not to speak and go far beyond any informed consent laws addressed by the United States Supreme Court, the Eighth Circuit Court of Appeals, or other courts to date.'

The lawsuit against the Bill was filed by the American Medical Association and Red River Women's Clinic. Red River is North Dakota's only legal abortion provider. According to research conducted by the Guttmacher Institute, people seeking abortions in the state must, in addition to very likely traveling long distances to reach the clinic, "undergo a state-mandated 24-hour waiting period." Minors may not receive an abortion in North Dakota without notifying their parents, and the state limits the ways a private insurance provider may cover the procedure. 

A separate North Dakota state law "requires physicians to tell patients that abortion terminates 'the life of a whole, separate, unique, living human being.'" The AMA and Red River suit also challenges this law, but the court has not yet addressed this claim, thus far only issuing the preliminary injunction against House Bill 1336.

Supreme Court Blocks Louisiana Abortion Restrictions

The New York Times (Feb. 7, 2018): Supreme Court Blocks Louisiana Abortion Restrictions, by Adam Liptak:

The Supreme Court blocked the Louisiana admitting-privileges law that Justice Alito issued a stay for just last week in June Medical Services v. Gee. 

The law would have effectively limited the abortion providers in the state of Louisiana to one, by requiring such providers to have admitting privileges at nearby hospitals. Many hospitals either would not extend such privileges or were not in the required 30-mile radius of the abortion-providing clinics at risk under the law. While initially passed in 2014, the Louisiana law has been entangled in lawsuits ever since. SCOTUS struck down a similar statute in Texas in 2016 in Whole Woman's Health v. Hellerstedt. 

The Supreme Court stayed enforcement of the Louisiana law, but it may ultimately decide to take the case for full review.  This would allow the Court to reconsider the clarification provided by Hellerstedt on the "undue burden" standard, initially implemented in Planned Parenthood v. Casey (1992). This standard says that legislation that has either the purpose or effect of placing a substantial obstacle in the way of a pregnant person seeking to exercise their constitutional right to an abortion creates an undue burden on them, and is therefore unconstitutional. Medically unnecessary laws that offer minimal, if any, health benefits to pregnant persons while increasing their obstacles to seeking an abortion constitute "undue burdens."

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing.

More than 5,500 women came to Illinois to have an abortion last year, amid growing restrictions in the Midwest

Chicago Tribune (Nov. 30, 2018): More than 5,500 women came to Illinois to have an abortion last year amid growing restrictions in the Midwest, by Angie Leventis Lourgos:

More women are crossing state lines to have abortions in Illinois, according to the latest statistics from the Illinois Department of Public Health.

Last year, 5,528 women traveled to Illinois from other states to obtain abortion care, almost one thousand more than the 4,543 women who came from out of state in 2016. The total number of abortions statewide during the same period increased slightly, from 38,382 in 2016 to 39,329 in 2017, according to annual state reports. Of those, about 1,000 abortions each year were provided to women whose home states were marked “unknown.”

Illinois is generally considered a reproductive rights haven amid the more restrictive Midwest, where women often face waiting periods, gestational limits, fewer clinics and other hurdles.

Within the Midwest, the availability of abortion providers differed drastically state by state. For example, Illinois had about two dozen clinics, roughly one for every 120,135 women of reproductive age. By contrast, in neighboring Wisconsin researchers found three facilities providing abortions, about one for every 423,590 women, according to data collected in early 2017.

Edwin Yohnka of the American Civil Liberties Union of Illinois said the rise in out-of-state travel for abortion “fits a pattern that we have seen the past few years.”

“While other states in the Midwest have imposed increasing restrictions and limitations on the ability of a woman to access health care, including abortion care, Illinois has largely moved to keep such health care more accessible,” he said. “As a state that imposes relatively fewer unnecessary and punitive barriers, we should expect women to seek care in Illinois.”

Abortion May Be Mobilizing More Democratic Voters Than Republicans Now

FiveThirtyEight (Oct. 31, 2018): Abortion May Be Mobilizing More Democratic Voters Than Republicans Now, by Daniel Cox:

Two new surveys reveal a remarkable shift in how important the issue of abortion is to Democrats and Republicans ahead of the 2018 midterm election this Tuesday, November 6.

A recent PRRI survey found that nearly half (47 percent) of Democrats said abortion is a critically important issue to them personally; 40 percent of Republicans said the same. That represents a dramatic swing since 2015, when 36 percent of Democrats and 43 percent of Republicans said abortion was a critical concern. Democrats are almost twice as likely today as in 2011 to rate the issue as critical.

Meanwhile, a recent Pew poll showed that abortion is a far more central voting concern for Democrats today than it has been at any point in the last decade — 61 percent of Democratic voters said abortion is very important to their vote this year. In 2008, only 38 percent of Democratic voters said the same.

Brett Kavanaugh’s confirmation to the Supreme Court appears to have elevated the perceived threat level to the right to abortion. A PRRI poll conducted during Kavanaugh's confirmation process found that nearly two-thirds of Democrats believed that Kavanaugh would vote to overturn Roe v. Wade. Another likely reason for the rising concern among Democrats, Cox reasons, is the years-long campaign to curb abortion access at the state level. 

Cox also finds that reproductive health care has taken a more central place in the Democratic agenda as women, particularly young women, have taken on more prominent roles in the party. Many Democratic women, Cox writes, see abortion access as inextricably linked to the financial security and autonomy of women.

However, polls show that when most Democrats make voting decisions, they still weigh the issue against a host of competing concerns, such as other health care issues and the environment. It is not a litmus-test issue for most Republican or Democratic voters. Only 21 percent of Republicans and 30 percent of Democrats say they would only ever support a candidate whose views on abortion align with their own, according to a PRRI poll.

Democrats are likely to continue to prioritize abortion so long as its legal status appears to be threatened and access to it is limited. This may mean that fewer Republicans campaign on their explicit opposition to abortion, at least in the short-term. Conservative Christians, who have worked for decades to overturn Roe, have been conspicuously tight-lipped about abortion in recent months, indicating that they are worried about the possible political fallout of discussing their views. The 2018 election will show if that strategy comes too late and the abortion issue has given Democratic voters another reason to head to the polls.

 

Abortion Rights Got Two Important Legal Wins Last Week

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

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

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

Judge Greg Stivers ruled:

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

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

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

 

Louisiana's 'admitting privileges' abortion law upheld

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

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

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

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

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

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

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

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

 

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."

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

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

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

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

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

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

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

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

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

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

Victory in the Supreme Court

United States Supreme Court (Jun. 27, 2016): Whole Woman's Health v. Hellerstedt:

In a 5-to-3 decision, the United States Supreme Court has overturned a Texas law that threatened to drive more than half of Texas's abortion clinics out of business and place abortion services beyond the reach of countless women. 

Drawing on tenets established in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the Court struck down a law requiring doctors performing abortions to have admitting privileges at a hospital and requiring clinics performing abortions to meet the standards imposed upon surgical centers. Regarding the admitting privileges requirement, the Court noted that the practice of abortion did not present a safety issue.  Moreover, abortion is safe enough that requiring clinics to meet the requirements of surgical centers would be superfluous.  Finally, the court could not reconcile the law with the lack of regulation of more dangerous surgical procedures and the wide distribution of waivers of the surgical-center requirements to clinics offering non-abortion services.  It declared that the restrictions placed substantial obstacles in the path of women seeking previability abortions in Texas. 

Indiana Anti-Abortion Bill Advances in Stealth

Salon (Mar. 14, 2016): While America Is Distracted by the Trump Freakshow, Indiana Just Passed One of the Most Restrictive Abortion Bills in the Nation, by Bob Cesca:

A draconian anti-abortion bill has landed on Governor Mike Pence's desk, passed by a legislature determined to raise the stakes in the campaign conservatives are waging against a woman's right to choose.  Described as a "reproductive Jim Crow law" by Salon reporter Bob Cesca, the bill contains a litany of targeted regulations of abortion providers (TRAPs) as well as" a ban on all abortions for elective reasons--and if the fetus suffers from any disability whatsoever." Women who are able to surmount the obstacles and have an abortion must pay for the burial or cremation of the fetus. In addition to the now-familiar ultrasound requirement, women will be required to listen to the fetal heartbeat. All of this is on top of the TRAP laws that have left all but four of Indiana’s 92 counties without an abortion facility. 

 

What Does Scalia's Death Mean for Reproductive Rights Cases Before SCOTUS?

Atlantic (Feb. 19, 2016): The Muddled Future of Reproductive Rights, by Julie Rovner: 

Prior to Justice Scalia's death, the Supreme Court frequently voted 5-4 votes on controversial decisions.  Following Justice Scalia's death, there is a chance that the Court could deadlock, 4-4 in cases this term.  When there is a tie vote, the appellate court's decision will stand, but it does not create national precedent. 

This March the Supreme Court is scheduled to hear two reproductive rights cases,  one on abortion and one on contraceptive insurance coverage. Whole Women's Health v. Hellerstadt challenges a Texas law that imposes restrictions on abortion clinics.  The district court struck down the law, but the Fifth Circuit's decision reversed the district court and would allow the law to go into effect with minor changes.   Zurbik v. Burwell challenges the religious accommodation that has been created for religious-affiliated institutions who wish to opt-out of contraceptive coverage.  Current rules do not require that religious hospitals or schools contract for contraceptive coverage.  Instead, they must inform the government who their insurer is so that the government can arrange for coverage.  The lower courts in the cases consolidated in Zurbik found that the administration's rules don't violate religious rights. 

Because appellate courts have ruled differently on both the contraceptive regulations and the constitutionality of laws like the Texas law challenged in Whole Women's Health, a tied Supreme Court decision would prolong Circuit splits.  If the Supreme Court cannot reach a decision in the two cases, it can also hold them over and re-hear them next term. 

University of Texas Releases Study on Impact of Texas Anti-Abortion Law

Ms. Magazine Blog: Texas Anti-Abortion Law is Having a Predictably Terrible Effect on Women, by Lily Wujek: 

The University of Texas at Austin recently released a study on the impact of Texas's HB2 Anti-Abortion Law on access to contraception and abortion services. HB2, which excludes Planned Parenthood affiliates from Texas' fee-for-service family planning program, is currently under review by the U.S. Supreme Court in Whole Woman's Health v. Hellerstedt.

The study found that after being turned away from a closed clinic, eight of the 23 women interviewed had to wait more than a week to obtain an abortion. Two of these women were not seen until after 12 weeks of pregnancy, despite initially seeking abortion care in the first trimester. Two women in the study could not obtain an abortion at all as both lived in areas of Texas that were left without an abortion provider after HB2 came into effect, and both had initially sought services early in their pregnancies. They ended up continuing their pregnancies because they did not have the resources to travel to another clinic.

According to a press release put out by the University, 

After the [passage of HB2], provision of the most effective reversible methods of contraception (IUDs, implants, and injectable contraception) decreased and Medicaid-paid births increased among injectable contraceptive users. Claims for IUDs and implants declined 35 percent and claims for injectable contraceptives declined 31 percent.

The study, entitled Effect of Removal of Planned Parenthood from the Texas Women’s Health Program, is published in the New England Journal of Medicine. 

 

An Abortion Battleground in a Southern Swing State

New  York Times (Jan. 11, 2016): Law on Ultrasounds Reignites the Abortion Debate in a 2016 Battleground, by Richard Fausset:

North Carolina has one of the most restrictive abortion laws in the country, one the Hilary Clinton campaign has called "outrageous."  Any doctor who performs an abortion after the 16th week of pregnancy must submit an ultrasound to the state.  The state says it wishes to verify that doctors are not performing post-20-week abortions.  Opponents of the law, which also extends the mandated waiting period for an abortion to 72 hours, call it an effort to intimidate both doctors, who know that determining gestational age is an inexact science, and women, who may hesitate before allowing information about their pregnancy to be shared with a governmental agency.  The law also requires doctors performing abortions after 20 weeks to send the health department the findings and analysis that were used to determine that a medical emergency existed.  The controversy has become an important issue in the political sphere, as Democrats harness liberal anger in an attempt to unseat the Republican governor Pat McCrory in his bid for a second term. 

45 Groups File Amicus Briefs Opposing Abortion Restrictions in Whole Woman's Health v. Cole

ThinkProgress (Jan. 5, 2016): The Abortion Case That Could Overturn Roe v. Wade Has a Lot of Opponents, by Alex Zielinski:

This March, the Supreme Court will hear argument in Whole Woman's Health v. Cole to decide whether HB2, a Texas law which places burdensome, unnecessary guidelines on abortion clinics and has already forced more than half of the state's clinic to close is constitutional.  The regulations are framed as health regulations, but they have been criticized as having little to do with women's health while imposing costly and unnecessary requirements on clinics. 

Reproductive rights advocates have been outspoken since HB2 passed in 2013, but since the Supreme Court’s November decision to hear the case, the diversity of opponents has grown. The 45 briefs were filed by a variety of petitioners, including physicians, historians, religious leaders, military officers, scientists, members of Congress, civil rights advocates, law scholars, entire cities, and the United States federal government itself.

  Several of the briefs tell the personal stories of women who have had abortions and the real world impact that HB2 will have on them.

Jessica González-Rojas, the executive director of the National Latina Institute for Reproductive Health, [spoke about] the women already harmed the most by the current Texas law.

“For immigrants, mothers, low-wage workers, and Latinas who are all three, securing an abortion means navigating a state-created obstacle course,” she said. “Those unable to jump through these hoops will be forced to carry an unwanted pregnancy to term or take matters into their own hands.”

The briefs reflect the largest coalition of faith leaders and organizations to oppose anti-choice laws at the Supreme Court level as well as the views of scientists and medical professionals.   Argument is set for March 2.

 

Unrelenting Reproductive Rights Rollback

New York Times (Dec. 19, 2015): The Reproductive Rights Rollback of 2015:

The New York Times reports that no fewer than 288 restrictions on abortion have been enacted since 2011.  These include the familiar targeted regulation of abortion providers scheduled for review next year by the Supreme Court.  But abortion is being attacked in other ways as well, including extensions of waiting periods, mandated in-person counseling necessitating two separate trips to an abortion provider, and bans on inexpensive medical abortions.  Against the backdrop of the forceful move in many states to de-fund Planned Parenthood, the only reproductive health provider for millions of poor women, these efforts reflect an attempt not only to unduly burden but indeed to obliterate entirely every woman's right to manage her reproductive life.

Legal Fight over Disposal of Fetal Tissue

New York Times (Dec. 14 & 15, 2015): Disposal of Fetal Tissue Debated in Court, Ohio Statehouse and Ohio: Legal Fight on Fetal Disposal:

A federal judge in Ohio has temporarily blocked state officials from taking legal action against Planned Parenthood to enforce a rule governing the disposal of fetal tissue. The order, issued Monday by Judge Edmund Sargus Jr., came in a dispute over how Planned Parenthood handles fetal tissue. Planned Parenthood is suing Ohio’s health director, claiming that the state’s health department changed the interpretation of the disposal rule without notice and then unfairly targeted its three affiliates that provide abortions.

The change in the rule's interpretation came on the heels of an investigation of Planned Parenthood by the Ohio Attorney General that found no evidence that Planned Parenthood made money from aborted fetuses.  Planned Parenthood of Ohio claims it has scrupulously followed the law on fetal disposal.  The next hearing in the dispute will take place on January 4th.

What's the Harm? Richard Epstein on Whole Woman's Health v. Cole

We are showcasing the presentations of participants in the What’s the Harm? symposium.  Today we feature Prof. Richard Epstein, whose presentation can be found here.  

Abortion and the Supreme Court, by Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

In his recent remarks at the What’s the Harm? conference, captured here and in a blog post at Stanford University’s Hoover Institution web site, Professor Richard Epstein explains why he believes the Supreme Court, having granted certiorari, should reverse the Fifth Circuit’s decision in Whole Woman’s Health v. Cole. In that decision, the appeals court upheld the Texas regulations that have drastically reduced the availability of abortion in the Lone Star State. Epstein would have the Court “scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes.”

Epstein criticizes the Fifth Circuit for having given “undue credit to legislative wisdom” and for having made the availability of out-of-state abortions a reason for giving the Texas regulations a pass. The court made plain it was employing a watered-down version of the rational basis test. Epstein objects to the use of this test “to eviscerate the painful compromises wrought in [Planned Parenthood v. Casey].”  

Epstein does this even though he has long had profound misgivings about the soundness of Roe v. Wade, which he wrote about as long ago as 1973: Richard A. Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," 1973 Supreme Court Review 159 (1973). But at this point the debate is no longer about how to squeeze out the right of abortion from the Due Process Clause. It is about whether to reverse course some 42 years after the earlier decision was made. That might well be appropriate with a forthright opinion, which comes from the Supreme Court, although it is highly risky to upset a long-established constitutional balance. What is not acceptable is to overrule a decision in the guise of interpreting it, which is what is done when the rational basis test is invoked to insulate the decisions of the Texas legislature from any serious scrutiny.

This rise of the rational basis test did not originate with cases dealing with personal liberties, but with those dealing with questions of property rights. Epstein traces the appeals court’s deference to any “conceivable” legislative purpose to Hawaii Housing Authority v. Midkiff, where the Supreme Court validated Hawaii’s plan to dismantle the “economic evils of a land oligopoly” that, according to Epstein, never truly existed. He traces the appeals court’s invocation of out-of-Texas alternatives to abortion to Ruckelshaus v. Monsanto Co., where the Court reasoned that a law requiring manufacturers to disclose data in connection with the production of pesticides did not effect a taking because Monsanto could avoid the requirement by selling its pesticides only in foreign markets.

Epstein urges those who would criticize the Fifth Circuit’s decision to be consistent. If we believe that the rational basis test was inappropriately invoked in Whole Woman’s Health, we should not complain that, in Burwell v. Hobby Lobby, the Court refused to use it in evaluating a mandate that required even employers with religious objections to provide health-insurance coverage for contraception. We should not, in other words, “split[] the constitutional universe between those individual rights that merit serious protection and those that do not.” It is very important not to have political preferences determine the appropriate level of scrutiny in constitutional cases. In general, the right test is to give the deference associated with the business judgment rule to the government when it is in charge of running some public institution, like a school or the military. The hard choices require some deference to management expertise, although probably less than in the private sector, because the exit option is weaker with public bodies. But the higher standard does rightly apply when the government acts as a regulator as when it forces the sale of leasehold units in Midkiff, the registration of fungicides in Ruckelshaus, or the operation of private abortion clinics in Whole Woman’s Health.