Supreme Court to Confront Post-Roe Abortion Battles
The Hill, November 29, 2023
Supreme Court justices are slated to delve into disputes surrounding abortion during their final session this year, revealing the legal battlefronts forming in the wake of the high court’s stunning decision that overturned Roe v. Wade. Several key cases are headed to the justices. One is Idaho’s emergency request to fully enforce its abortion law, a ruling that is possible as soon as this week. At the justices’ Friday conference, they are scheduled to consider whether to take up an appeal seeking to overturn a Supreme Court precedent allowing laws that ban anti-abortion activists from approaching people outside abortion clinics. And at next week’s conference, the justices are slated to review whether to take up the dispute over the availability of mifepristone, the common abortion pill, which they will take up at a Dec. 8 closed-door conference. Agreeing to hear that dispute would mark the highest-stakes abortion case since last year’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned decades of constitutional abortion protections. In April, a Trump-appointed federal judge suspended approval of the drug, which is used in more than half of all abortions nationwide. The 5th U.S. Circuit Court of Appeals later ruled the pill, which was approved by the FDA in 2000, could remain on the market, but the panel upheld portions of the earlier decision, rolling back changes the FDA made since 2016, which eased access. The 5th Circuit ruled the FDA acted improperly when it said mifepristone can be used up to 10 weeks of pregnancy rather than seven, allowed the medication to be mailed to patients, lowered the dosage and permitted providers other than physicians to prescribe the drug. Now, the justices are scheduled to consider petitions to review that ruling from the Biden administration and Danco Laboratories, which manufactures the brand-name version of mifepristone. The Supreme Court previously intervened in the case to maintain the status quo until any appeals are resolved. The Biden administration said letting it stand would be an “unprecedented decision” that would call into question the FDA’s broader authority.
Some Republicans Were Willing to Compromise on Abortion Ban Exceptions. Activists Made Sure They Didn’t.
ProPublica, November 27, 2023
[….] When the Supreme Court struck down the constitutional right to abortion last year, strict abortion bans in more than a dozen states snapped into effect. Known as “trigger laws,” many of the bans were passed years earlier, with little public scrutiny of the potential consequences, because few expected Roe v. Wade to be overturned. Most of the trigger laws included language allowing abortion when “necessary” to prevent a pregnant person’s death or “substantial and irreversible” impairment to a major bodily function. Three allowed it for fatal fetal anomalies and two permitted it for rape victims who filed a police report. But those exceptions have been nearly inaccessible in all but the most extreme cases. Many of the laws specify that mental health reasons can’t qualify as a medical emergency, even if a doctor diagnoses that a patient might harm herself or die if she continues a pregnancy. […] On the floors of state legislatures over the past year, doctors detailed the risks their pregnant patients have faced when forced to wait to terminate until their health deteriorated. Women shared their trauma. Some Republican lawmakers even promised to support clarifications. But so far, few efforts to add exceptions to the laws have succeeded. A review by ProPublica of 12 of the nation’s strictest abortion bans passed before Roe was overturned found that over the course of the 2023 legislative session, only four states made changes. Those changes were limited and steered by religious organizations. None allowed doctors to provide abortions to patients who want to terminate their pregnancies because of health risks. ProPublica spoke with more than 30 doctors across the country about their experiences trying to provide care for patients in abortion-ban states and also reviewed news articles, medical journal studies and lawsuits. In at least 70 public cases across 12 states, women with pregnancy complications faced severe health risks and were denied abortion care or had treatment delayed due to abortion bans. Some nearly died or lost their fertility as a result. The doctors say the true number is much higher.
Texas Supreme Court Considers Abortion Challenge
The Texas Tribune, November 28, 2023
The Supreme Court of Texas heard arguments Tuesday in a landmark case that could impact how the state’s abortion laws apply to medically complicated pregnancies. In August, state District Judge Jessica Mangrum ruled that the near-total abortion ban cannot be enforced in cases involving complicated pregnancies, including lethal fetal diagnoses. The state immediately appealed that ruling, putting it on hold. Texas law allows abortions only when it is necessary to save the life of the pregnant patient. But this lawsuit, filed by the Center for Reproductive Rights in March, claims that doctors are unsure when the medical exception applies, resulting in delayed or denied care. “No one knows what [the exception] means and the state won’t tell us,” Molly Duane, senior attorney for the Center for Reproductive Rights, told the justices Tuesday. The state argues the judge went too far in her injunction by reading exceptions into the law beyond what the Legislature intended. “What the legislature has done is chosen to value unborn life and prohibit abortion in all circumstances, unless that life is going to conflict with the life of the mother,” said assistant attorney general Beth Klusmann. “The legislature has set the bar high, but there is nothing unconstitutional in their decision to do so.” Justice Jimmy Blacklock questioned Duane on the “capaciousness” of the injunction, asking whether this might allow abortions as a result of common pregnancy complications like high blood pressure. “It seems to me, looking at the case you presented and the injunction that was granted, that this very well could open the door far more widely than you’re acknowledging,” he said. Duane said the injunction would only apply to emergent medical conditions that could become critical or life-threatening if not treated. But she acknowledged that Mangrum’s ruling is “doing more work than normal,” because “legislators don’t usually write laws that people who are regulated by those laws simply do not understand.”
How Abortion Bans Hinder Pregnancy Counseling
Rewire News Group, November 22, 2023
Conservatives, not fully satisfied with criminalizing abortion and pregnancy outcomes across the country, are now attempting to prevent pregnant people from accessing information about abortion care and seeking abortions outside of states where it is banned. In March, Idaho Attorney General Raúl Labrador issued a legal opinion that said the state’s abortion ban prevented Idaho medical providers from referring a woman across state lines for abortion care or prescribing abortion pills to be picked up in another state. In response, providers in Idaho stopped giving out-of-state abortion referrals in fear of criminal prosecution or licensure penalties. Planned Parenthood sued, and in August, a federal judge enjoined Idaho from enforcing the legal opinion. The continued legality of abortion referrals is crucial to helping pregnant people access abortion care and ensuring health-care providers can supply their patients with information. Abortion referrals are also sometimes a next step after pregnancy options counseling, where a clinician or counselor provides pregnant people with unbiased, nondirective information about parenting, pregnancy termination, or adoption. State abortion bans have created an environment of fear and uncertainty among health-care providers about what information they can provide to pregnant patients. That fear is especially troubling for providers and patients at Title X clinics, which are federally funded and provide reproductive and sexual health care to low-income people. In March, the Biden administration withdrew Title X funding from clinics in Tennessee because of the conflict between Title X’s directive that providers offer patients pregnancy options counseling and the state’s abortion ban. Stephanie LeBleu, the Title X project director at Every Body Texas, an organization that supports sexual and reproductive health-care providers in Texas, said the state’s myriad of abortion bans and regulations have increased providers’ perceived risk of offering information and abortion referral services to clients at Title X clinics in Texas. “The expectation under Title X regulations is that clinics who receive Title X funding have to provide neutral, factual, nondirective pregnancy counseling on all the options [to patients who request it],” LeBleu said.
HMS Study Finds Abortion Restrictions May Increase Number of Children in Foster Case
The Harvard Crimson, November 29, 2023
A study conducted by affiliates from Harvard Medical School found a significant relationship between abortion restrictions and the number of children in the foster care system. The study, which was co-authored by researchers at Harvard Medical School, Beth Israel Deaconess Medical Center, and Bentley University, used past laws limiting access to abortions as a proxy for measuring the potential effects of the Supreme Court’s June 2022 decision to overturn the constitutional right to abortion established in Roe v. Wade. The study found that racial and ethnic minority children were disproportionately affected by the restrictions and saw a rise in children entering the foster care system even greater than the overall change. Savannah Adkins, a lecturer of economics at Bentley University, said in an interview that the researchers were inspired to delve deeper into the issue because of a lack of existing research. “It seemed kind of a very obvious connection because it’s something that’s talked about a lot, but no papers had actually looked at statistically the link yet,” Adkins said. The study also sheds light on the intersectionality of healthcare, race, and economics by demonstrating how policies in one area can have ripple effects in others. Adkins’ research identifies four categories of Targeted Regulation of Abortion Providers laws as responsible for disproportionately high rates of children entering foster care in impacted states. According to Adkins, TRAP laws are laws that impose “the same restrictions that ambulatory services might have but on abortion clinics.” Adkins said examples of TRAP laws include requirements for abortion clinics to have transfer agreements with local hospitals and to be within a certain distance of a hospital. “There’s been many, many, many studies that have looked at the link between different types of pre-Dobbs anti-abortion legislation,” Adkins said. “They really show that these laws do restrict access to abortion and cause there to be fewer abortions,” she added. Adkins said the study found TRAP laws were associated with a “11 percent increase in entrants into foster care.”
ICYMI: In Case You Missed It
🚨 Our new research shows that the lack of women in state legislatures is a nationwide threat to abortion access. Of the 26 states where women make up 1/3 or less of the state legislature, only 15% have policies that support abortion access. https://t.co/pr0hApbA5z
— National Partnership (@NPWF) November 29, 2023
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