Roundup: Judges Hear Virgina Abortion Law Case

Brady Swenson

Fourth U.S. Circuit Court of Appeals hears Virginia late-term abortion law twice deemed unconstitutional; Catholics chastise Fordham University for giving award to Justice Stephen Breyer; Prenatal testing and abortion; Anti-contraception candidate for House in Virginia.

Judges Hear Virgina Abortion Law Case

The full 4th U.S. Circuit Court of Appeals heard arguments yesterday
over a Virginia law banning a late-term abortion procedure twice struck
down by a panel of the same court.  Virginia’s 2003 law prohibiting the intact dilation and extraction procedure has been held unconstitutional in two 2-1 panel rulings, most
recently for imposing an undue burden on a woman’s right to obtain an
abortion.  The procedure is called "partial-birth abortion" by the anti-choice movement, a term coined to mislead and generate popular support for its position against this rare procedure, used when a dilation and extraction procedure is deemed too dangerous for the mother:

Stenberg v. Carhart,
in the year 2000, struck down a Nebraska law that attempted to ban
certain forms of pre-viability second-trimester abortion. With the
moderate Sandra Day O’Conner still on the court, the importance of
having a health exception for the mother and the broad wording of the
Nebraska law meant that it could be interpreted to ban abortion more
broadly, which is why the court rejected it.

In her article summarizing the case, Greenhouse explained
the birth of a new right-wing strategy, the invention of the term
"partial-birth abortion: "Anti-abortion forces coined the term in the
mid-1990’s and have focused on graphic descriptions of the procedure as
a way of undermining public support for abortion. The ruling today
represents a significant setback to that strategy."

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Intact dilation and extraction,
the procedure targeted by the right wing as partial-birth abortion, was
invented in the 1990s as an alternative to the sometimes, more
dangerous dilation and evacuation.
Around the time of the 2000 case, intact dilation and extraction
counted for less than .2% of all abortions performed, and was often
used when the other procedure was riskier, the fetus had died in the
womb, or would not live long past birth. But the purpose of the right wing’s campaign against the procedure was to paint women seeking abortions as irresponsible and uncompassionate.

The debate during this third appeal on behalf of this law twice deemed unconstitutional is centering around the consequenses a doctor who performed the procedure would face:

The three judges on the two prior panels — M. Blane Michael and
Diana Gribbon Motz in the majority and Paul V. Niemeyer the dissenter
— dominated questioning yesterday by the 11 judges in attendance.

Michael complained that unlike the federal law, the Virginia law is
written in such a way that a physician who intends to perform a regular
D&E could face prosecution if it accidentally turns into an intact

"He faces a credible threat of prosecution every day he performs one
of these," Michael said. But Thro said that the state law, "does not
apply to accidental, intact D&Es."

But, countered Michael, "the question is, does [the possibility]
chill a doctor?" Such a chill could interfere with a woman’s right to
have an abortion, he said.

Stephanie Toti with the Center for Reproductive Rights told the
judges there were important differences in the definitions used in the
state and federal laws. "It’s very plain the [Virginia] statute does
criminalize accidental [intact] D&Es," she said.

Catholic Church Chastises Fordham University for Awarding Ethics Prize to Abortion Rights Supporter Justice Stephen Breyer
Fordham alumni and Cardinal Edward Egan,
the leader of the Catholic church in New York, are up in arms over
Fordham University handing its Fordham-Stein Ethics Prize to Justice Stephen Breyer, a supporter of abortion rights. Cardinal
Egan, according to the AP, has spoken to the Catholic university’s leaders to ensure “that a mistake of this sort will not happen again.”

According to the AP, more than 1,100 Fordham alumni and others have signed a petition calling for the award to be revoked. The Cardinal Newman Society,
a conservative Catholic group based in Manassas, Va., is leading the
protest. The group recently objected to Santa Clara University’s
decision to honor former Clinton administration official and U.S. Rep.
Leon Panetta. Patrick Reilly, the society’s president, has called
Panetta “a leading advocate of the Culture of Death.”

The argument against Breyer — one of two Jewish justices on the
Court (the other is Ruth Bader Ginsburg) — is that he wrote the
majority opinion in Steinberg v. Carhart, the 2000 case that struck
down a Nebraska law banning partial-birth abortion. He also dissented
in a 2007 case that upheld a federal law banning the same procedure.


Pre-Birth Defects

William Saletan of writes this morning about new prenatal tests that can screen fetuses for 150 to 200 genetic abnormalities.  The advent of prenatal genetic testing was the subject of articles in the Wall Street Journal and Washington Post over the weekend.  In the Washington Post article Leslie G. Biesecker of the federal government’s National Human Genome Research Institute calls the technology "a classic Pandora’s box."  She continued, "Like any powerful technology, it solves some problems while at the
same time creating new ones. How you use a powerful technology decides
whether it’s good or bad."  Aside from the debate about the ethics of providing this kind of guided speculation on the fetus’ future health critics of the technology are arguing that it will increase the abortion rate, which is the discussion Saletan takes up:

It’s pretty rich to see pro-lifers wring their hands about this information while, at the same time, they campaign for ultrasound laws. As Emily Bazelon has pointed out,
you can’t be for information when it discourages abortions but against
information when it leads to abortions—not if your real purpose is, as
pro-lifers insist, simply to inform women.

Saletan admits that he is not advocating a restriction of prenatal genetic testing, but he makes the point that the information they provide is not perfect and their results, if "abnormal," may alter the way prospective parents think about the pregnancy:

This is the world we’re entering in prenatal testing. It’s a world
where you’ll know more and more about which diseases your baby might
get. Instead of thinking the baby is normal, you’ll know it’s abnormal.
And from talking to your doctor and looking up the associated diseases
on the Internet, you’ll get a very clear picture of how awful the
child’s life might be if it gets the disease. With that picture in the front of your mind, and the "abnormality" label in the back of your mind, your conceptual frame—and your default plan—can change. Genetically, something is definitely wrong with your baby. What are the chances it won’t get the disease? Can you live with yourself if you fail to prevent this, knowing what you now know?

While more information about the health of your pregnancy is a good thing, Saletan concludes with a warning that your right to that information comes with a responsibility "to choose wisely."  Though I’m confident you already understand that concept. 


Candidate for House of Representatives in Virgina Refused Employees Birth Control has a good writeup on Republican Keith Fimian who is running against Democrat Gerry Connolly in Virginia’s 11th district. A heath care plan for employees of Fimian’s company made available on Virginia blogs shows that Fimian refused to cover contraceptives for his employees under his company’s heath care plan.  Fimian is widely documented as being anti-choice and anti-contraception and is even a member of an anti-birth control group, Legatus. Looks like another foot soldier in the War on Contraception.  Click on over to Blog For Choice for video of Connolly’s latest television ad aimed at informing women of Fimian’s extreme anti-contraception stance. 


News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”