Abortion Information


Amanda Matos and Bonyen Lee-Gilmore from Planned Parenthood Votes on why abortion access is reserved for the privileged — and how this election could change that

Abortion rights shouldn’t be reserved for a privileged few.
Saul Loeb/AFP/Getty Images

This is the story of two worlds in the U.S. — where the power to decide what happens to your body, your life, and your future depends on the state you live in, who you are, and how much money you earn. We are cisgender heterosexual women of color, representing two of the fastest-growing groups in the American electorate. As a Latina and an Asian American woman, we know the right to live free from discrimination goes beyond who we elect to the White House. We are freedom-fighting activistas who carry light-skinned privilege, and know our votes are bigger than our individual stories.

As a New Yorker, one of us benefits from state leaders who protect the right to an abortion, no matter who sits in the White House or on the Supreme Court. Yet not everyone in New York has equal access to that right. Even if you can find money for the abortion — a big “if” — you may not be able to take time off from work or afford childcare or transportation.

By contrast, one of us lives in Missouri, where there is only one abortion provider in the entire state because politicians have eroded abortion access. Senior Missouri health officials even admit to tracking our menstrual cycles on a spreadsheet to control our access to health care — the latest in a long history of surveillance of our reproductive health choices. If you have the means, sure, you can hop over to Illinois or another neighboring state for an abortion. But the gap between rights and access — rooted in systemic racism and misogyny, and fueled by white supremacy — respects no borders.

The right to access abortion — particularly for many of our friends and family who are black, Indigenous, people of color, transgender, or gender non-conforming — is a right in name only, no matter which state they live in.

This tale of two worlds is created by who we elect to state houses and who holds the governor’s veto power. It’s the state politicians behind voter suppression, racial gerrymandering, so-called sanctuary cities and bathroom bills that target black and brown voters of all gender identities. Those same politicians are also responsible for passing laws meant to take control of our reproductive health care decisions.

This is not a coincidence. Abortion restrictions are also inherently racist and designed to work in tandem with other oppressive policies to disenfranchise people of color — people like us.

A staggering 480 state abortion restrictions enacted since 2011 effectively amount to abortion bans for people with low incomes, people of color, and young people who cannot afford to travel long distances or pay out-of-pocket for care. The very politicians who built our country’s racist and oppressive systems, and then dismantled inner-city and rural infrastructure, targeted these communities in a game of power and control.

This November, our lives are on the ballot. For people in black and brown communities, this election is critical. And it’s time to send a message to the white-supremacist patriarchy, hellbent on taking away our rights and freedoms: Your time is up. Our collective ability to be equal, live freely, and achieve our dreams starts with our ability to secure reproductive freedom. Yes, that means voting Trump out of office. It also means changing the face of power in our state legislatures and governors’ offices.

That’s why Planned Parenthood advocacy and political organizations and Planned Parenthood supporters are organizing this year at the local level to flip our state legislative and governor seats in favor of reproductive health champions who will actually fight for, and expand, our rights. State leadership is vital to our future. In Illinois, pro-reproductive health majorities enacted laws to protect abortion rights for generations, regardless of who sits in the White House. In Virginia, decades of harmful abortion restrictions are now wiped from the books. This is the world we’re fighting for.

Forget the stereotypes you’ve heard. Latino and Asian Americans, the rapidly growing 43 million eligible voters, recognize that we are stronger when we stand in solidarity with Black and Indigenous people — some of whom face struggles for reproductive freedom that we don’t.

Our ballots will look different in every state, but one thing will be the same: our responsibility. We must be armed with the knowledge of who will fight to protect and expand access to reproductive health care in our state houses, and who won’t. We cannot accept a political system divided into two worlds, in which zip codes, state borders, or skin color determines rights and freedoms. This November, we decide.

Source: https://www.rollingstone.com/politics/political-commentary/planned-parenthood-abortion-access-vote-1060691/?fbclid=IwAR1Yv0WxtTYPaFhXapg-0VG3lvnlstcFmfIMBbzM8jSZ4rWDOmvMwfUuCBA

The biases of poverty, sex and race have always motivated reproductive policing. Pictured: A Eugenics Society poster from the 1930s. (Wikimedia Commons)

Throughout the process of writing Policing The Womb: Invisible Women and the Criminalization of Motherhood, I struggled to understand what accounts for this period of policing the womb, the vileness directed at women, and the various indignities cast upon indigent women by the state. I filled notepad after notepad with names and stories.

Among the many disturbing narratives was that of 12 women sodomized and raped by police officer Daniel Holtzclaw, who literally policed and terrorized their bodies. He raped one of his victims while she was handcuffed to a hospital bed. She testified that she had to think about survival while he raped her. Another victim was underage.

According to the lawsuits,

“Holtzclaw’s actions were part of a common pattern and practice of sexually assaulting middle-aged African American females whom he identified as vulnerable to his sexual abuse and whom he believed would either be reluctant or unwilling to come forward or who would not be believed if they did come forward.”

These women were not policed because of pregnancy or the potential to become pregnant, but because of their race, poverty and sex. It is these very biases—poverty, sex and race—that motivate reproductive policing. 

On the one hand, this is nothing new; Black women experienced reproductive horrors during chattel slavery, and in many cases their reproductive rights barely improved during Jim Crow, when eugenics policies resulted in coercive state sterilizations—so much so that in Mississippi forced sterilization against Black women became known as the “Mississippi Appendectomy.”

Dr. Marion Sims notoriously lacerated, punctured and then sutured the uteruses of the enslaved women he kept at his home.

Sims regularly tortured Black women he rented as human research subjects, nightly lacerating their wombs and conducting experiments, denying them anesthesia in the process. He was doubtful of their ability to experience pain.

Today he is hailed as the “father of gynecology,” and the namesake of many gynecological devices, like the Sims vaginal speculum—though several petitions now call for them to be renamed. And until recently, a statue of him adorned Central Park in New York City. (Unsurprisingly, in 2017 someone spray-painted the word “racist” on said statue, months before its subsequent removal.)

Why We Need A Reproductive Justice New Deal or Bill of Rights

Dr. Sims’s statue in Central Park has been removed, but a Sims momument in Columbia, S.C. (pictured) remains. (Wikimedia Commons)


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Mere years after slavery’s abolition, American lawmakers launched an aggressive assault on poor women through eugenics laws, upheld by the U.S. Supreme Court in Buck v. Bell.  In that 1927 decision, the Supreme Court claimed:

“Three generations of imbeciles are enough … It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

Justice Oliver Wendell Holmes, author of the Court’s opinion wrote:

“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

The Third Reich in Nazi Germany learned from this, borrowing directly from the Virginia eugenics law upheld by the Supreme Court.  This is how the Germans started their eugenics efforts.  In fact, Joseph S. DeJarnette, superintendent at a Virginia hospital, lamented “the Germans are beating us at our own game.”

Fitter family contests took place throughout the U.S., with families lining up throughout the country to show that they were “fit.”  States gave awards to white families that could prove their “fitness.”

For the victims—poor white women, Indigenous womenLatinas and Black women—this was state-sponsored terrorism.

Even in the 1970s, states continued to carry out these practices.   In 1974, Alabama sterilized sisters Mary Alice and Minnie Relf, aged 14 and 12 respectively. Years later, a lawsuit filed by the Southern Poverty Law Center on behalf of the Relf sisters revealed that federally funded programs sterilized 100,000 to 150,000 people each year. Clearly, some of those sterilizations may have been voluntary, but the majority were likely facilitated through coercive means.

In Puerto Rico, it is estimated that one-third of its female population was sterilized.  So common it was called, “la operación” (the operation).

It’s unknown how many American women in total suffered this fate—or continue to, as Buck v. Bell was never overturned. For example, a 2013 legislative report conducted by California’s state auditor Elaine Howe found “numerous illegal surgeries and violations of the state’s informed-consent law.”  The investigator reported that nearly 150 women were sterilized while incarcerated in California prisons during the period 2006–2010.

In a letter to former Governor Jerry Brown, Howe wrote that in some instances, women were sterilized without physicians signing the forms or certifying the competency of the women or that they understood the lasting effects of the procedure. In other instances, the state’s correction office ignored the state’s waiting period before the sterilizations could take place.

At least 25 percent of the California prison sterilizations in the 2000s occurred without any lawful consent and the “‘true number’ of illegal procedures might be higher,” according to the audit, because “records were lost in a routine purging.”

It’s Time for Congress to Enact a Reproductive Justice Bill of Rights

This week, House Speaker Nancy Pelosi called for an investigation of the Department of Homeland Security after a whistle-blower complaint about forced sterilizations among women in at an ICE detention center.  An investigation is urgently needed.  But, for members of Congress who claim this would never happen in the U.S.  History proves them wrong.

Importantly, it is for the reasons above that I also call on Speaker Pelosi and members of Congress to enact a Reproductive Justice Bill of Rights or New Deal. American lawmakers as well as judges should be accountable to the girls and women of our nation.

And it’s not just eugenics that makes this moment urgent for a reproductive justice bill of rights: It’s also the attacks on sex education in school, including mandating harmful, abstinence only instruction; the rollbacks on contraceptive access; high rates of unaddressed maternal mortality; threats to abortion access, including during the pandemic; and slashing of funding associated with breast and cervical care screening—among other assaults.

And given the high rates of women’s mass incarceration in the United States, we need a reproductive justice bill of rights, because of extensive medical neglect women experience in America’s prisons and jails.

Importantly, the reason for a reproductive justice bill of rights is because without it, we continue to risk the gravest atrocities carried out with the official endorsement of the state on women and girls in the United States.

Source: https://msmagazine.com/2020/09/16/eugenics-state-forced-sterilization-we-need-a-reproductive-justice-new-deal-or-bill-of-rights/?fbclid=IwAR0rennDEi5tn-asOaeH8As-pBvVGVouPRqIZZz8Zej7b4k6XSQRRUA4P1s

It’s time to put to rest the myth that abortion hurts women.

A new book, “The Turnaway Study,” adds essential data and perspective to the ongoing debate over abortion.

For decades, anti-abortion activists have argued that abortion is harmful to women, claiming that it often leads to regret, mental health issues and dependence on drugs and alcohol. Even former Supreme Court Justice Anthony Kennedy bought into this reasoning, writing in 2007 that those who have abortions may experience “severe depression” and a loss of self-esteem.

That thinking has been used to justify onerous abortion restrictions, such as long waiting periods, that can make it harder to obtain the procedure and even effectively bar it for some.

But does abortion actually harm women? And what of those who are denied a desired abortion? How might their mental health be impacted by a forced pregnancy? These questions are at the heart of research done by Diana Greene Foster, a professor at the University of California, San Francisco in the obstetrics, gynecology and reproductive sciences department.

Foster has spent the past 10 years investigating the outcomes for women who had or were denied abortions, tracking their emotional, physical and economic health. To get the most accurate picture, she compared women who obtained an abortion just before the gestational deadline to women who were too late to the clinic and were turned away. The difference between the two groups was often a matter of days.

The results of Foster’s study, aptly named The Turnaway Study, were recently published in a book with the same title. Among her findings: Abortion did not increase women’s risk of having suicidal thoughts or their chances of developing post-traumatic stress disorder, depression, anxiety, low self-esteem or lower life satisfaction. Nor did it increase women’s use of alcohol, tobacco or drugs. Women who got the abortions they wanted were more likely to have a positive outlook on the future; 95% said abortion was the right decision for them.

The outlook for women who were denied an abortion was less cheery. They were more likely to live below the federal poverty level and to be unemployed. They struggled more than their counterparts to afford basic necessities like food, housing and transportation. They were more likely to stay in contact with violent partners. And they experienced more serious health problems.

Foster’s findings are particularly relevant now, as the coronavirus pandemic, the economic downturn and ongoing efforts to restrict abortion access have made the procedure even more difficult for many to obtain.

HuffPost’s interview with Foster has been edited for clarity and length.

Why did you begin this project?

It really came from wanting to test the idea that abortion hurts women, which is an idea that is circulated widely and promoted by anti-abortion advocates. It is important not just to ask the question of whether abortion hurts women, but also how does restricting access to abortion affect women? There have been hundreds of restrictions in just the past 10 years. So, knowing and understanding the effect of those seems extremely important.

How was the study conducted? It sounds like you relied on clinic staff to connect you to patients. 

Exactly. If they were going to turn a woman away, they would give her all the normal counseling and then say, “By the way, there’s a study out of UCSF which will ask you about your health and well-being for the next five years. Might you be interested?” If the woman said yes, they would put them on the phone with us.

Then they would approach the next two women who received an abortion just under the gestational limit to see if they would participate. We followed them over time to ask them about their physical health, mental health, economic well-being and achievement of other life plans.

The leading cause of showing up to a clinic later in pregnancy is not realizing you’re pregnant. That can be a marker of a chaotic life, but it also can happen to lots of people, like women who just had a baby, young women who’ve never had regular periods, women with chronic health conditions that have similar symptoms as for pregnancy.

[Entering the study, the groups of those who received abortions and those who didn’t] were very similar. They don’t have different emotional profiles.

Why did women say they were seeking abortions? 

The reasons women sought abortions in this study are very similar to national data on why women have abortions: They didn’t have enough money, had partner-related reasons, needed to focus on other kids, or they believed it would interfere with other future opportunities.

What was surprising was not the reasons they gave, but how prescient they were in predicting the outcome of the people who were denied. So they’re worried about not being financially prepared, and we see that they become poor. They worry that their relationship isn’t strong enough to support a child, and we see that relationships dissolve whether or not they have the baby. They say they need to focus on other kids, and we see that their existing kids do worse when they are denied an abortion than receive it.

One of the main goals of the study was to find out if abortion hurts women. Does it?

No. We don’t find evidence of any systematic pattern of worse mental health for women who receive an abortion compared to those who are denied. We don’t find evidence that abortion hurts women, but there are several ways in which being denied an abortion hurts women.

When the government takes an active role in trying to prevent people from getting abortions, it has serious consequences for their lives ― for their physical health, for their economic well-being and for their life trajectory. This meddling in people’s decision-making is really short-sighted. They’re focused on this one pregnancy and not the woman’s well-being or her existing children.

One of the interesting findings was about domestic violence. Can you elaborate on that? 

One in 20 women had reported that they experienced violence from the man involved in the pregnancy in the months prior to becoming pregnant. The difference between women who receive an abortion and those who are denied is that those who receive an abortion see a sharp drop-off in exposure to that guy, whereas the women who don’t receive an abortion have ongoing contact and a higher risk of experiencing violence. Over time, the relationships dissolve and eventually the women extricate themselves, but it is years of continued violence, whereas getting an abortion might have enabled her to get away.

What was the most surprising thing you found? 

The most surprising thing was that two women denied abortions died from childbirth and pregnancy, which is a shockingly high rate of maternal mortality, much higher than we would have expected, and a total tragedy.

The other thing that was surprising was just how widespread the effects are. It’s not just the woman’s life, it’s her kids, it’s her future kids, it’s her relationships.

Was there anything that came up in this study that you did not get to research thoroughly or that you think deserves more research?

I wish we’d asked about whether people were trans men. We had the inclusion criteria of just pregnant women so I don’t know if there were trans men who would have participated but didn’t think they were eligible. We also restricted the study to exclude people seeking abortions for fetal anomaly. I should have included them just to understand more about their experience. It’s a separate study, but it really should be done.

How do you hope your research is used? 

Our debate about abortion is too abstract. We don’t consider the real people who are involved in it. I would love for people to read the book to have a little glimpse into the lives of people who are in the position of being pregnant when they don’t want to be. There are clear policy implications of putting restrictions in place that slow people down and prevent them from being able to get an abortion if they feel like they need one. I’d like to see a little more compassion.

Source: https://www.huffpost.com/entry/myth-abortion-hurts-women_n_5f52647bc5b6578026cd5e51?fbclid=IwAR3lH824-YrY2YCqKntdfsR7pbMCRDIRbjskN6nQxtj9w2UTKuRqpUjmfN8

Their claims are at odds with medicine and science.

Texas Sen. Ted Cruz recently claimed that “pregnancy is not a life-threatening illness.” Childbirth is 14 times more likely to end in death than abortion is.
Alex Wong/Getty Images

Abortion rights opponents understand that medication abortion is the future of abortion care, which explains their escalating and coordinated campaign to make it impossible to access.

Senate Republicans intensified the battle earlier this month when they sent a letter to the Food and Drug Administration urging the agency to take a widely used abortion drug completely off the market.

The request effectively asks the FDA to ban medication abortion entirely.

The group of 20 senators argued that the drug, mifepristone, poses an “imminent hazard to public health” and should be classified as such by the FDA, eliminating its legal use in the United States. Seventy-two lawmakers in the House of Representatives penned a similar letter the same day.

They are at least the second and third letters of their kind in a little more than a year: In May 2019, over 100 anti-choice members of Congress applauded the FDA for sending a cease and desist to Aid Access, a telemedicine site operated by a Netherlands-based doctor who prescribes mifepristone to patients in the United States.

Since then, lawmakers and anti-abortion groups have continued to call for the agency to crack down on websites selling the drug online; now they’re pressuring the agency to ban the medication outright, and with it a method of abortion early in pregnancy that accounts for about 40 percent of abortions.

These most recent appeals to the FDA arrive just as restrictions on mifepristone have been temporarily eased, and a new battlefront in the medication abortion wars has emerged. In July, a federal judge ruled that the FDA’s longtime requirement that the drug only be dispensed at a hospital or clinic could be suspended during the COVID-19 pandemic because the requirements unduly burdened abortion rights by forcing patients to make unnecessary trips to pick up medication that could easily be delivered to them at home.

In response, the Trump administration filed an emergency request to the Supreme Court to have the rule reinstated because the requirements “mitigate serious health risks associated with the drug,” echoing fellow conservatives’ unsubstantiated claims that the drug is so dangerous it needs to be highly regulated and perhaps removed from the marketplace altogether. The Supreme Court has not yet decided if it will take up the Trump administration’s emergency request to reinstate in-person requirements for dispensing medication abortion.

Reproductive health advocates see anti-choice lawmakers and Trump administration officials as working in tandem to sway a federal agency that might be sympathetic to their position, hoping that if they succeed, a new FDA classification of mifepristone will be difficult for their pro-choice opponents to undo.

“I think there’s a sense that it’s important to do something about medication abortion because of its increasing relevance,” said Mary Ziegler, a professor at the Florida State University College of Law who specializes in the legal history of reproductive health. “Part of the value of going through the FDA is that the decision they come to might be more insulated from challenges.”

Ziegler said anti-choice leaders aim to achieve this by attempting to cast doubt on the safety and effectiveness of mifepristone, framing their efforts to curb access as concern for women’s health. But their claims are at odds with medicine and science, according to experts who study the drug, which was approved by the FDA in 2000.

“We know from more than 20 years of research that mifepristone is extremely safe,” said Ushma Upadhyay, an associate professor at Advancing New Standards in Reproductive Health, a research group at the University of California, San Francisco. In a 2015 study of 11,000 medication abortions, less than one-third of 1 percent of patients experienced complications requiring hospital care. And over the two decades the drug has been on the market, there have been just 14 deaths.

“Pregnancy and childbirth aren’t safer than abortion,” Upadhyay continued, referencing Texas Sen. Ted Cruz’s recent claim that “pregnancy is not a life-threatening illness.” “Childbirth is 14 times more likely to end in death [than abortion is],” she said.

Advocates only expect attacks on medication abortion to ramp up, especially as this method of early abortion becomes more widely used and thus more normalized. For these reasons—as well as for reasons having to do with the drug’s safety profile—they believe it will be difficult for their anti-choice opponents to succeed in persuading the FDA to recall mifepristone. And even if they did, it would be nearly impossible to completely eliminate access to it: Many people obtain the drug by buying it on the internet.

“In the era we live in it would be really hard to eliminate access to it,” Zeigler said. “Part of the revived interest in medication abortion [among anti-choice leaders] has been a sense that it may be the future of first trimester abortion and abortion period.”

Still, the efforts to further restrict—or completely eliminate—the drug will have immediate consequences for people who need abortions. A spokesperson from NARAL Pro-Choice America said dispelling misinformation about medication abortion is “increasingly an organizational priority” for the group.

“People who need access to abortion care may not have the complete picture or all the info to make the best decision for their circumstances,” said Kristin Ford, NARAL’s national communications director. “We think it’s really important to counter their false claims and inoculate against their disinformation.”

And in the current policy environment—one where attacks on reproductive rights have become both more frequent and more extreme—advocates can’t discount the possibility that anti-abortion activists will find a way to realize their vision, especially if Donald Trump wins a second term in the White House.

“We used to think birth control was a non-issue, but then people started saying, ‘They’re coming for your pill,’ and yeah, they are actually,” Rachel Jones, Guttmacher Institute’s principal research scientist, said. “Unfortunately even though science is on our side, we have to take these threats seriously.”

Source: https://rewire.news/article/2020/09/09/the-abortion-pill-is-safe-so-why-are-conservatives-lying-about-it/

The Trump administration could force abortion patients to have unnecessary surgeries.

Chief Justice John Roberts and Associate Justice Brett Kavanaugh arrive to hear President Donald Trump deliver the State of the Union address in the House chamber on February 4, 2020, in Washington, DC. Leah Millis/Getty Images

Last June, Chief Justice John Roberts provided a brief reprieve to abortion providers — joining his liberal colleagues in striking down a Louisiana anti-abortion law. But that reprieve could be very short-lived: A case now before the justices could give them a vehicle to undercut the right to terminate a pregnancy.

If the Trump administration gets its way in Food and Drug Administration v. American College of Obstetricians and Gynecologiststhe Supreme Court could force many patients seeking abortions to undergo unnecessary surgeries, despite the fact that those patients could safely terminate their pregnancy with medication — and that’s assuming that these individuals are able to find a doctor to perform the surgery in the first place.

The case turns on whether the courts should relax long-standing FDA-imposed restrictions on the drug mifepristone, which is commonly used in medication abortions, in order to make the drug easier to obtain during the Covid-19 pandemic.

In the short term, a victory for the Trump administration would leave in place long-standing rules requiring health providers to dispense mifepristone to abortion patients in person. During ordinary times, this restriction imposes a fairly minor burden on such patients. But, as explained below, the same restriction could potentially prevent many pregnant individuals from obtaining an abortion altogether while the pandemic still rages.

Any time the Roberts Court hears an abortion case, moreover, the abortion right is at risk — because a majority of the Supreme Court is skeptical of whether that right should exist in the first place. Indeed, if the Court follows the path laid out in the Trump administration’s brief in American College, many abortion patients could lose access to the safest form of abortion.

Roberts’s decision to invalidate the Louisiana law in June Medical Services v. Russo (2020) was a somewhat surprising development, as Roberts has fairly consistently opposed abortion rights during his career on the bench. But June Medical was also a very narrow victory for abortion advocates.

The chief justice’s opinion turned on the fact that the Louisiana law at issue in June Medical was nearly identical to a Texas law the Court struck down just four years earlier. Roberts spent much of his June Medical opinion explaining why he disagrees with many of his Court’s decisions protecting abortion, and even dropping hints about how anti-abortion advocates can help undermine abortion rights in the future.

June Medical, in other words, turned out the way it did because abortion opponents brought the weakest possible case to the Supreme Court — a case that was in all relevant respects indistinguishable from another case that the Court recently decided. The new case pending before the justices, Food and Drug Administration v. American College of Obstetricians and Gynecologists, does not suffer from similar weaknesses.

There are several reasons to suspect that Roberts will return to his anti-abortion roots in American College. Even if this were not an abortion case, and even if Roberts were not typically opposed to abortion rights, Roberts has urged courts to defer to public health officials during the pandemic. He’s unlikely to support a lower court decision that disagreed with the FDA’s judgment regarding a drug used in abortions.

And, with four other anti-abortion justices on the Supreme Court, if Roberts does flip back to the anti-abortion side in American College, that will almost certainly be enough to form a majority.

What’s at stake in American College?

Mifepristone, the drug at the center of American College, is part of a two-drug regimen used to induce abortion. Mifepristone causes pregnancy tissue and the lining of the uterus to break down and separate from the uterus itself. About a day or two after taking mifepristone, the patient takes a second drug, misoprostol, which causes uterine contractions and expels the uterus’s contents.

Although patients may take mifepristone at home, the FDA only permits this drug to be distributed at hospitals, clinics, or medical offices — meaning that it cannot be dispensed by a retail or mail-order pharmacy. Thus, at a time when many health providers are moving toward telemedicine to protect themselves and their patients from the coronavirus, abortion providers and their patients must risk in-person contact.

The limit on who can dispense the drug stretches back to when mifepristone was originally approved by the FDA in 2000, while Bill Clinton was president. The FDA also reviewed its restrictions on mifepristone in 2011, 2013, and 2016 — all during the Obama administration — and it left the requirement that the drug be dispensed by health care providers in place.

But while this requirement imposes a relatively minor burden on people seeking abortions during normal times, it is significantly more burdensome during the coronavirus pandemic. Many clinics have either closed or reduced the number of patients who are allowed to visit, in order to reduce the spread of Covid-19. But that means that fewer patients are able to obtain mifepristone at those clinics.

Meanwhile, patients may be afraid to travel to a clinic — especially if they rely on public transportation — because of the risk that they could be exposed to the coronavirus during this trip. As one expert witness testified in the American College case, the requirement that drugs be dispensed in-person “unnecessarily increases the infection risk for patients, their families, health care professionals, and the larger communities in which they work and live.”

The FDA, moreover, has relaxed similar restrictions on other drugs unrelated to abortion during the pandemic, but it has not made such accommodation for mifepristone. As the plaintiffs note in their brief, the FDA has taken “‘extraordinary actions’ to reduce viral transmission by suspending in-person requirements for drugs, including potentially lethal controlled substances like opioids, and urging the use of telemedicine ‘whenever possible.’” Yet it’s left the in-person dispensing restriction in place for mifepristone.

In light of all of these factors, a federal trial court held that the requirement that mifepristone must be dispensed in-person to patients by health providers should be suspended until 30 days after the end of the public health emergency triggered by Covid-19.

“The In-Person Requirements impose a substantial obstacle to abortion patients seeking medication abortion care,” wrote Judge Theodore D. Chuang. As Chuang noted, the dual barriers raised by the pandemic and the in-person requirements “delay abortion patients from receiving a medication abortion, which can either increase the health risk to them or, in light of the ten-week limit on the Mifepristone-Misoprostol Regimen, prevent them from receiving a medication abortion at all.”

After a federal appeals court refused to block Judge Chuang’s order, the Trump administration went to the Supreme Court, seeking a stay of that order. And, if that stay is granted, it could send a very clear signal to lower court judges that the right to an abortion should not be robustly enforced.

The Trump administration says it’s fine to restrict medication abortions so long as patients can have unnecessary surgeries

The low-water mark for abortion rights, at least after Roe v. Wade (1973), was the Supreme Court’s 2007 decision in Gonzales v. Carhart.

Prior to Gonzales, the Court applied a strong presumption against abortion restrictions that might endanger patient health. As the Court held in Stenberg v. Carhart (2000), “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” a ban on a particular abortion procedure must “include a health exception when the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’”

But Gonzales upheld a federal ban on an abortion procedure known as intact dilation and extraction, despite the fact that the federal ban did not include an exception protecting “the life or health of the mother.” Rather, Gonzales held that state and federal lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

Thus, if physicians disagree about whether intact dilation and extraction is ever necessary to protect the health of a patient, Congress can resolve this disagreement in favor of a ban on the procedure.

Significantly, Gonzales also noted that the ban on intact dilation and extraction did not prohibit another “commonly used and generally accepted method” of abortion that could be used as an alternative to intact dilation and extraction. Thus, the Court reasoned, a ban on this one particular method of abortion “does not construct a substantial obstacle to the abortion right” because patients could still obtain a different form of abortion.

The Trump administration wants to turn this line in Gonzales into a rule that would block many abortion patients from obtaining the safest method of abortion. According to the Trump administration’s brief, restrictions on the use of mifepristone are appropriate — even if those restrictions effectively prevent many pregnant individuals from receiving a medication abortion altogether — because these patients could still have surgical abortions.

The in-person dispensing requirement, the Trump administration argues, has “no effect on the availability of surgical abortions, a method that this Court has treated as safe for women.” Thus, they claim, the fact that another (far more invasive) means of obtaining an abortion is available means that the FDA is free to impose restrictions on medication abortion. So long as surgical abortions are available, the American College plaintiffs cannot attack restrictions on medical abortion “simply because [they] would prefer another alternative.”

That’s an aggressive reading of the Court’s decision in Gonzales. As the plaintiffs explain in their brief, the thrust of their case is that “patients incur grave COVID-19 risk by engaging in unnecessary travel and physical proximity to other people as a condition of obtaining” a medication abortion. But those same patients face even more risk if they are forced to “travel to a health center for a more invasive procedure” such as a surgical abortion.

And that’s assuming that these patients are even able to obtain a surgical abortion in the first place. Many clinics are already operating at reduced capacity due to the pandemic and have reduced the number of surgeries they perform as a result. These already stressed clinics are unlikely to be able to accommodate a rush of patients seeking surgeries in lieu of a medication abortion.

Nevertheless, it’s likely that this Supreme Court — with its conservative Republican majority — will, at the very least, give very serious consideration to the Trump administration’s arguments.

Moreover, when the administration seeks a stay of a lower court order, the justices typically decide whether to grant that request fairly quickly, and without oral arguments or full briefing. That means that the Court could potentially hold that the government may block patients from receiving medication abortions — and force these patients to have more invasive surgical procedures or to give up their right to terminate their pregnancy — as soon as this week.

Roberts is likely to uphold the restrictions on mifepristone, but it’s unclear if he’ll go as far as the Trump administration wants him to go

In June Medical, the four most conservative justices all voted to uphold Louisiana’s attempt to shut down many of its abortion clinics. Those four justices are almost certain to support additional restrictions on the right to an abortion. Meanwhile, the four liberal justices are typically fairly protective of abortion rights.

That leaves Roberts, who almost always votes with his conservative colleagues in abortion cases (among other things, Roberts joined the majority in Gonzales), as the closest thing to a swing vote in American College.

There’s good reason to believe that Roberts is likely to uphold the in-person restrictions on mifepristone. Indeed, there’s good reason to believe that Roberts is likely to uphold any similar restriction on a drug, regardless of whether that drug is used in abortions.

For one thing, Roberts has advised courts to defer to public health officials during the Covid-19 pandemic, even when those officials take steps that implicate constitutional rights. In South Bay United Pentecostal Church v. Newsom (2020), Roberts broke with his fellow conservatives to uphold a California public health order limiting the number of people who could gather in a place of worship.

“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”

A similar logic could apply in American College. That is, the task of determining whether it is safe to obtain mifepristone via a mail-order pharmacy, or some other method, is left to the FDA. And, if plaintiffs disagree with that judgment, courts should defer to the FDA.

Roberts, moreover, joined the Gonzales majority, with its conclusion that the government has “wide discretion” to restrict abortion in areas “where there is medical and scientific uncertainty.”

To be sure, the primary plaintiff in the American College case is the American College of Obstetricians and Gynecologists, an organization with an unusual amount of credibility to opine on whether medical uncertainty exists in a particular case. But the College also believed that doctors should be allowed to perform intact dilation and extraction prior to Gonzales, and the Court did not defer to the College’s judgment in that case.

There is good reason to suspect, in other words, that Roberts is likely to resolve a disagreement between the FDA and the College regarding how to safely dispense mifepristone in favor of the government agency.

That said, the fact that the FDA is likely to prevail in American College does not mean that Roberts will go so far as to declare that medication abortions can effectively be banned so long as surgical abortions are available. For one thing, when the Court stays a lower court decision, it often does so in a brief order that does not explain the majority’s reasoning. So even if Roberts agrees with the Trump administration’s arguments, he may not write those arguments into a binding opinion.

If the Court does produce a majority opinion, moreover, there’s no guarantee that Roberts will embrace the broad new restriction on abortion rights proposed by the Trump administration. He could dispose of this case in a relatively narrow opinion holding that courts should defer to public health officials during the pandemic, much like the Supreme Court did in South Bay.

But the fact remains that the Court has five justices who are broadly skeptical of abortion rights. So any time an abortion case reaches the Supreme Court, the Court’s Republican majority could potentially use that case to cut back on the right to terminate a pregnancy — or even to eliminate the right altogether.

Source: https://www.vox.com/2020/9/9/21426056/supreme-court-abortion-american-college-obstetricians-gynecologists-surgery-trump-john-roberts?fbclid=IwAR3rbcA-6mTXzYrhZ_y_hF-BsxxbPcxh3aEFe4PgAhJYekp5IlApr2O7MnE

The Trump administration is asking the Supreme Court to reinstate a rule requiring abortion seekers to visit health care providers in person to acquire one of the pills for medication abortions, after lower courts blocked the rule during the ongoing coronavirus pandemic.

The escalated fight surrounding the pills — which the Food and Drug Administration does not require to be taken while with the health care provider — is the latest development in a pandemic-era clash over abortion access that has increasingly manifested as a battle of regulations.
“Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first ten weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat riskier,” acting Solicitor General Jeffrey Wall wrote Wednesday.
Medication abortion, a nonsurgical procedure effective until about 10 weeks into a pregnancy, typically entails taking two drugs several days apart. The contested regulation concerns mifepristone, the first drug, which works to block the hormone progesterone necessary for a pregnancy to continue.
The FDA information page on mifepristone states that the drug “may only be dispensed in clinics, medical offices, and hospitals by or under the supervision of a certified healthcare provider,” but does not specify where the patient must take it. The second drug taken in a medication abortion, misoprostol, causes cramps and heavy bleeding as the uterus expels its contents. It can be taken “at a location appropriate for the patient,” according to the FDA.
The Trump administration’s challenge comes after several reproductive health groups, represented by the American Civil Liberties Union, sued the FDA in May over the long-standing requirement, arguing that it was unconstitutional for the agency to maintain the rule for the abortion drug while lifting it for other drugs in light of the pandemic.
“By making life-threatening viral exposure risks a condition of treatment for medication abortion and miscarriage care, the FDA’s continued maintenance of the Mifepristone In-Person Dispensing Requirement jeopardizes the safety of patients, clinicians, and the public at large, with no countervailing benefit—and with particularly severe implications for low-income people and people of color, who comprise a disproportionate share of impacted patients and who are already suffering and dying from COVID-19 at substantially higher rates,” the ACLU wrote at the time.
A lower court sided with the groups and temporarily blocked the requirement in July, and a federal appeals court denied the administration’s efforts to overturn the ruling earlier this month.
Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project, said in a statement Wednesday that she hoped the Supreme Court would deny the petition.
“The Trump administration refuses to end its crusade to subject abortion patients and their families to entirely unnecessary exposure risks,” Kaye added. “Forcing patients to travel during a pandemic just to pick up a pill is irrational and dangerous, which is why the medical community uniformly opposes this senseless rule.”
The administration’s efforts follow several states’ efforts to limit abortion access during the pandemic, labeling it an elective procedure that can be limited under state orders professing to protect stores of personal protective equipment during the pandemic.
The move also comes on the heels of other efforts by the administration to regulate abortion access. The administration issued a federal regulation in December that would have required insurers on the Obamacare exchanges that cover abortions to issue separate bills for that coverage. A federal judge blocked it in July.

Those on the new Trump Supreme Court shortlist have displayed open hostility to civil and human rights. Pictured: Outside the Supreme Court to call for the reversal of President Trump’s travel ban in January 2017. (Lorie Shaull / Flickr)

Over the next few years, there could be numerous vacancies on the Supreme Court. And Donald Trump is desperately trying to curry favor with the extremist wing of his party (and distract from bombshell reporting) by issuing a list of new picks for a potential Supreme Court vacancy.

As it turns out, his new additions are cut from the same cloth as his previous picks. He wants the Court to be his—but it’s ours.

Trump has already installed two Supreme Court Justices and more than 200 judges to lifetime appointments on federal district and circuit courts—many of whom have made our worst nightmares a reality.

We at The Leadership Conference on Civil and Human Rights opposed many of these judges because of their hostility to our civil and human rights and to equal justice for all of us. And now, on the bench, they have pursued Trump’s backwards agenda to dismantle the progress we have made on everything from access to health care to voting rights.

Trump’s own declarations about exactly who he would select for the Supreme Court make his agenda crystal clear: He has said that he would only select people who will curtail reproductive rights and strip health care away from millions of Americans.

And the careers of those on the shortlist remind us that their past records are a prologue. Many have led the way in reversing progress on our civil and human rights—having defended some of the most extreme voting rights restrictions, advocated for the courts to declare the Affordable Care Act unconstitutional, attacked LGBTQ people’s dignity and rights, and so much more.

The administration is now looking to secure more of the same Trumpian brand of conservatism with this updated list. Should Trump fill any Supreme Court vacancies, he would further cement an enduring legacy that will outlast his presidency for decades to come.

We will bear the brunt well into the 21st century.

Trump added the most far-right Republican senators to his shortlist, including Ted Cruz (R-Texas), Josh Hawley (R-Mo.), and Tom Cotton (R-Ark.)—joining the likes of Mike Lee (R-Utah) who was on his previous shortlist.

The Supreme Court Belongs to Us—Not Trump

Ted Cruz (R-Texas), Josh Hawley (R-Mo.), and Tom Cotton (R-Ark.). (Gage Skidmore + Natureofthought)

Tom Cotton shamelessly tweeted moments after this announcement: “It’s time for Roe v. Wade to go.”

Their agenda for the courts is driven by the policy change they want to permanently see but know they cannot implement legislatively.


Other new additions, like Sarah Pitlyk, are beholden to the anti-reproductive freedom movement having defended unconstitutional abortion bans, challenged in-vitro fertilization and surrogacy, called on the Supreme Court to “revisit” Roe, and argued against contraceptive access.

The Supreme Court Belongs to Us—Not Trump

(Planned Parenthood Action / Facebook)

Lawrence VanDyke, who Trump plucked to serve in a Nevada seat on the Ninth Circuit despite nearly no ties to the state, refused to affirm that he would be fair to LGBTQ people in his courtroom.

In fact, VanDyke’s peers raised concerns about this as reflected in the American Bar Association’s review when they rated him Not Qualified.

Another shortlister, Greg Katsas, was put on the D.C. Circuit after serving in Trump’s White House Counsel’s office. Katsas was personally involved in some of the most egregious actions by the Trump administration, including their discriminatory anti-LGBTQ positions.

The Supreme Court Belongs to Us—Not Trump

Greg Katsas has advanced an agenda to restrict voting rights, LGBT rights, and access to women’s health. (C-SPAN)

Kyle Duncan was the right-wing’s go-to lawyer in cases seeking to diminish the civil and constitutional rights of the LGBTQ community. Trump appointed him to a Louisiana seat on the Fifth Circuit, and since he has become a judge, his outright refusal to treat LGBTQ litigants fairly or with dignity has been on display in his cruel decisions.

Disturbingly, many of those on the new Trump Supreme Court shortlist have advocated for efforts that restrict voting rights. For example, Katsas and Duncan defended voter suppression efforts that targeted Black and Brown voters. Their confirmations to the Supreme Court would all but ensure that the highest court in the land is weaponized as a central component of Trump’s assault on our democracy.

We know Trump also expects his judges to be loyal to him. He has promoted those, like Katsas, who have a troubling view that the president should be largely unchecked and that executive privilege should be expanded. Those listed lack the independence we expect and demand of our judges and justices.

Finally, Trump is actively campaigning to gut the Affordable Care Act while knowingly lying to the American public about the severity of the COVID-19 pandemic that has already cost nearly 200,000 lives. The Supreme Court is scheduled to hear oral arguments on November 10 to consider a Republican-led lawsuit seeking to declare the ACA unconstitutional. The stakes are incredibly high, and installing one more Trump loyalist on the Supreme Court would deny millions who depend on health care access a fair day in court.

Feminists at the Supreme Court in support of the Affordable Care Act in 2016 during oral arguments in a case seeking to weaken its contraceptive coverage mandate. (Victoria Pickering / Creative Commons)

With Trump taking us back to the despicable days when all people were not considered equal, and with our hard-fought rights and future in peril—and very much on the ballot—we must put an end to Trump’s court takeover. The Supreme Court belongs to us, not Trump.

Source: https://msmagazine.com/2020/09/10/the-supreme-court-belongs-to-us-not-trump/?fbclid=IwAR0DAfUUode5admZ5TjlB3M7LLtFz3YHCvvDux1C641W-iCGOB9SxWVlCvU

When they reconvened last month, state lawmakers, who should be preoccupied with addressing systemic racism and police violence that sparked state and nation wide uprisings, are instead attacking reproductive freedom.

Last month, it was a medically-unfounded bill based on the false premise of abortion “reversal,” which came on the heels of unsuccessfully attempting to use the coronavirus to block abortion access — actions so outrageous that United Nations experts accused Tennessee of committing human rights violations by infringing on reproductive rights and endangering women’s health.

And that was before Monday, when Gov. Lee signed one of the strictest abortion bans in the country, which a federal judge quickly blocked.

Hear more Tennessee Voices: Get the weekly opinion newsletter for insightful and thought provoking columns.

New polling data show that attempts to limit reproductive health decisions are at odds with voters’ views. Among Black women in Tennessee, nearly all of those surveyed (95%) say a woman’s ability to control whether or not she has children is an important part of financial stability for herself and her family.

However, due to structural inequality and systemic racism, Black women in Tennessee make only 68 cents for every dollar a white man makes, meaning a Black woman will have to work until age 79 to make what a white man makes when he retires at 65.

Working towards reproductive freedoms

Mirroring national data showing strong support for abortion rights among the general public, Black women in Tennessee overwhelmingly support protecting abortion access. Nearly three quarters (72%) of those surveyed said they think abortion should be legal in all or most cases.

When thinking about a woman who has decided to have an abortion, majorities say the experience should be: as simple as possible (78%), respectful of the decision (78%), affordable (77%) and available in the person’s community (73%).

Black women must weigh a variety of additional factors when making reproductive health and parenting decisions.

A majority of respondents said they based personal decisions on whether to parent on: access to living-wage jobs (60%), affordable health care (53%), food security (51%), affordable housing (50%), child care access (49%), over-policing (38%) and racism (55%).

Plainly stated: Controlling our reproductive lives is about more than abortion; it’s about dismantling the systemic racism that prevents us from having the resources to raise our families in abundance, dignity and safety.

Over-policing, poverty, housing and food insecurity, low-resourced schools and disparate healthcare access impacts are all barriers to reproductive freedom for Black and pregnant women.

Reproductive Justice demands the human right to control our bodies, our sexuality, gender, work and reproduction.

This requires not just overturning harmful reproductive health restrictions, but proactively demanding legal protections and societal change that address the health, safety and wellbeing of Black women and our families in all areas of our lives.

Black women are the best informed to make decisions about our health and wellness, not politicians.

Tennessee’s conservative elected officials are woefully out of touch with the needs of Black women and families. Black women voters must turn out in November to send a strong message:

The entirety of our Black lives matter, and we expect our elected officials to finally center our needs and values if they want our votes.

Marcela Howell is CEO and president of In Our Own Voice: National Black Women’s Reproductive Justice Agenda. You can follow her work on Twitter at @BlackWomensRJ. 

Cherisse Scott is the founder and CEO of SisterReach. You can follow her work on Twitter, Facebook & Instagram at @SisterReach. 

Source: https://eu.commercialappeal.com/story/opinion/2020/09/01/tennessees-black-women-show-strong-support-reproductive-rights/5679583002/

On Tuesday, Republican senator Ted Cruz proudly announced his efforts to erode access to one of the safest medical procedures in the world, by attempting to get the abortion pill banned. “Pregnancy is not a life-threatening illness, and the abortion pill does not cure or prevent any disease,” he tweeted. “Make no mistake, Mifeprex is a dangerous pill. That’s why 20 of my Republican colleagues and I are urging the FDA to classify it as such.”

The previous day, this group of Republicans had mailed a letter to the Food and Drug Administration, calling on the agency to “classify the abortion pill as an ‘imminent hazard to the public health’ that poses a ‘significant threat of danger’ and remove this pill from the U.S. market,” despite overwhelming evidence that the abortion pill is safe.

Cruz’s tweet was met with immediate outrage, coming as it does in the middle of a grievous maternal mortality crisis. America has been called “the most dangerous place in the developed world to deliver a baby.” According to CDC data, in 2018, the maternal mortality rate in the U.S. was 17.4 maternal deaths per 100,000 live births, by far the highest in any developed nation. And for Black women, the rate is twice as high: 37.1 deaths per 100,000 live births. Every year, approximately 800 women in the U.S. die during pregnancy and within 42 days after delivery, and 50,000 are “severely harmed” due to complications related to childbirth. Meanwhile, the abortion pill is known to cause complications “in no more than a fraction of a percent of patients,” according to a landmark report published in the National Academies of Sciences, Engineering and Medicine.

Thousands of advocates, politicians, and those who’d experienced life-threatening pregnancy complications responded to Cruz, calling his assertion that pregnancy is “not life-threatening” ignorant and misogynistic. “I had preeclampsia — a life-threatening disease caused by pregnancy. The only cure is to no longer be pregnant,” wrote one woman.

“I had a stroke while pregnant with my son and bled out in the delivery room right after my daughter was born. If not for modern medicine and blood transfusions, I’d be dead right now. DO NOT TELL ME PREGNANCY CANNOT BE LIFE-THREATENING,” said another.

For further evidence of this, Cruz need only look to the state he represents, which boasts the highest maternal mortality rate in the country. According to a study published in Obstetrics and Gynecology, in 2014, Texas’s maternal mortality rates was 35.8 per 100,000 live births. For comparison, in Japan, that number was five.

Source: https://www.thecut.com/2020/09/ted-cruz-under-fire-for-tweet-about-pregnancy-and-abortion.html

WASHINGTON – The Supreme Court’s decision in June striking down a Louisiana restriction on abortion clinics is giving abortion opponents an unlikely opportunity in other states.

Officials in Texas, Ohio, Indiana, Kentucky and Oklahoma have in recent weeks argued that the high court’s 5-4 ruling actually bolsters their defense of anti-abortion laws, even though the justices ruled against Louisiana.

The states’ arguments coincide with a federal appeals court decision earlier this month reinstating several abortion restrictions in Arkansas, which was based in part on the Supreme Court’s seemingly pro-choice ruling.

The flurry of activity in federal and state courts is largely a result of Chief Justice John Roberts’ concurring opinion in the Louisiana case – one that doomed the state’s restrictions on abortion clinics and doctors but rebutted the standard used by the court’s four liberal justices.

More: Supreme Court strikes down abortion clinic restrictions in Louisiana, a defeat for conservatives

The main opinion by Associate Justice Stephen Breyer said the Louisiana law, which required doctors who perform abortions to have admitting privileges at nearby hospitals, posed a “substantial obstacle” to women seeking abortions without “significant health-related benefits.” Roberts, providing the crucial fifth vote, rejected the use of a balancing test and said the law should fall simply because of a 2016 Supreme Court precedent.

The court, he said, must “treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”

Chief Justice John Roberts presided Thursday over the second day of senators’ questions in the impeachment trial of President Donald Trump. Come Friday, he may be called upon to vote or issue important rulings. Handout, Senate Television via Getty Imag

Abortion opponents have argued in several cases this summer that the five justices agreed only on the need to determine a law’s burdens. That was the standard used by the high court in a 1992 Pennsylvania case that upheld abortion rights as well as reasonable state limits.

Those defending abortion rights have responded that the balancing test standard from 2016 remains intact, giving them the ability to win if a restriction has little or no benefit to mothers or their fetuses.

What’s clear for now is that the Supreme Court’s latest abortion ruling “has led to more litigation rather than less,” said Julie Rikelman, senior director at the Center for Reproductive Rights, who represented the Louisiana clinic at oral argument in March.

University of Virginia School of Law professor Richard Re, a scholar on court rulings that produce no majority opinion, said those arguments are likely to persist.

“This is the latest round of debate about what counts as precedent and how you evaluate precedent,” Re said. “The debate will rage on.”

‘Strange world indeed’

Abortion rights demonstrators including Jaylene Solache, of Dallas, Texas, right, rally outside the Supreme Court in Washington, D.C., on March 4, 2020. Jacquelyn Martin, AP

The Supreme Court’s ruling June 29 in June Medical Services v. Russo came as a surprise to abortion opponents. The court had struck down a similar restriction on clinics in Texas in 2016, but Associate Justice Anthony Kennedy, who provided the fifth vote, later retired and was replaced by the more conservative Associate Justice Brett Kavanaugh.

Roberts, however, proved once again to be a stickler for process and precedent. He had dissented in the Texas case but said it should be followed in Louisiana.

Still, his separate opinion has opened the door for proponents of other restrictions – such as requirements for ultrasound tests, waiting periods and parental notification, as well as bans on the most common type of second-trimester abortions – to argue that Roberts’ opinion helps their cause.

“The chief justice’s opinion controls, because it announces the only legal proposition on which a majority of justices voting for reversal agreed: substantially burdensome laws may be unconstitutional,” Ohio Attorney General Dave Yost told the U.S. Court of Appeals for the 6th Circuit. Ohio is seeking to stop abortions sought at least in part because of a Down syndrome diagnosis.

Similarly, Kentucky Attorney General Daniel Cameron urged the same appeals court to reconsider its decision striking down a ban on the second-trimester abortion method known as dilation and evacuation.

“Although (the Supreme Court ruling) has six different opinions, the reasoning of Chief Justice Roberts’s opinion governs because it has the only rationale on which the five justices who voted for reversal agreed,” Cameron’s office said.

Abortion rights advocates are fighting back against that argument. While acknowledging that Roberts rejected the liberal justices’ test of balancing burdens and benefits, they said he did not erase prior high court rulings embracing that standard. They pointed to recent court decisions in Maryland and Texas, where judges ruled in their favor.

“It would be a strange world indeed if a single justice could overrule a prior binding decision issued by a majority of the court,” said Jennifer Dalven, director of the American Civil Liberties Union’s reproductive freedom project.

‘Cutting their losses’

WASHINGTON, DC – JUNE 29: Pro-life activists participate in a demonstration in front of the U.S. Supreme Court June 29, 2020 in Washington, DC. The Supreme Court has ruled today, in a 5-4 decision, a Louisiana law that required abortion doctors need admitting privileges to nearby hospitals unconstitutional. (Photo by Alex Wong/Getty Images) ORG XMIT: 775527899 ORIG FILE ID: 1253281017 Alex Wong, Getty Images

Federal district and appeals court judges have been weighing in on both sides.

In Maryland, federal district Judge Theodore Chuang said Roberts did not single-handedly overrule the balancing test, which he then applied in striking down a federal requirement that women visit medical facilities to get abortion medication.

Chuang ruled that in-person visits provide no significant benefit and declared them unnecessary in light of the COVID-19 pandemic. The Trump administration has asked the Supreme Court to block that ruling.

In Texas, a 5th Circuit Court of Appeals panel denied the state’s effort to block a 2017 lower court ruling that struck down the state’s ban on dilation  and evacuation, the common second-trimester procedure. President Donald Trump’s nominee on the panel, Judge Don Willett, dissented.

But the 8th Circuit ruling in Arkansas has given abortion opponents hope, as well as the decision by Planned Parenthood to drop its challenge to an Indiana law requiring women to get ultrasound tests at least 18 hours before an abortion procedure. That decision was due, at least in part, to an increased availability of ultrasound tests.

“It seems clear that the positions taken by abortion advocates demonstrate an understanding that their cases have become much harder,” said Steven Aden, chief legal officer at Americans United for Life. “They’re making strategic decisions that show that they’re cutting their losses.”

Responds Rikelman: “The other side is trying to use every means necessary to continue to restrict abortion” as part of a “coordinated national strategy.”

Planned Parenthood isn’t giving up on a separate challenge to Indiana’s parental notice requirement. The two sides in that fight recently returned to court, where Indiana Attorney General Curtis Hill said Roberts had the “controlling opinion” in the Louisiana case. ACLU lawyers said the 2016 Texas decision that used a balancing test “continues to provide the governing undue-burden standard.”

One thing is clear in the wake of the Supreme Court’s latest split decision: Battles over abortion restrictions that continue to rage in lower courts will be forced to address it.

That’s already the case in federal appeals court fights over second-trimester procedure laws in Texas and Oklahoma, Ohio’s Down syndrome law, Indiana’s parental notice law and a Kentucky law requiring abortion providers to have agreements with local hospitals and ambulance services.

As the court fights continue, lawyers on both sides say a potential trend could emerge. Laws that impose restrictions on clinics, doctors and patients could receive more lenient treatment than tougher bans aimed at outlawing abortions at various stages of pregnancy.

The question, Aden said, is “where does the chief justice draw the line?”

Source: https://eu.usatoday.com/story/news/politics/2020/08/31/abortion-supreme-courts-ruling-abortion-rights-boosts-opponents/5624869002/

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