Roundup: Oklahoma Goes Round and Round While South Carolina Is Stuck

Robin Marty

Oklahoma is playing the veto game for a fourth time, South Carolina is stuck in the mud on abortion, and Canada teaches the U.S. some lessons about reducing teen pregnancy.

Here we go again…

For the fourth time, Oklahoma Governor Brad Henry is vetoing the state legislature on an abortion law, this time a ban on abortion coverage for all insurance plans in the state.  The AP reports:

Oklahoma Gov. Brad Henry late Wednesday vetoed an abortion bill that would put strict limits on when private health insurers can cover the procedure.

The bill includes exceptions for cases of rape, incest or to prevent the death of the mother. Coverage for abortions could be obtained through a separate supplemental policy.

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The bill is meant to prevent state insurance exchanges, created under the new federal health care law, from covering most abortions, said state Rep. Skye McNiel, R-Bristow. But it also extends the ban to health insurance plans outside state exchanges that operate within Oklahoma.

Henry, a Democrat, said the legislation would punish victims of rape or incest by prohibiting insurance coverage for an abortion if they did not report the crime within a certain time period.

“Rape and incest victims should be treated with dignity and respect, not subjected to a state-imposed Catch-22 that denies them insurance coverage at such a critical time,” Henry said in his veto message. “HB 3290 creates an unconstitutional barrier to legal medical treatment protected by this nation’s highest court and would result in an expensive lawsuit and potentially futile legal battle for the state.”

It is expected that this veto, like all of the others, will be overridden by the legislature.

South Carolina is also working to push through an insurance limitation on abortion for state workers or others who receive insurance that would be funded in part by taxpayer dollars.  Sadly, their debate is tying up the entire budget.  According to CB Online:

The abortion issue arose in March as House Republicans won an all-night fight to limit abortions covered by the state health insurance to only instances involving the health of the mother, eliminating coverage for abortions sought by victims of rape or incest.

Taxpayer funding for abortions became a huge political issue in the midst of the federal debate on a national health care overhaul.

Senate Minority Leader John Land, D-Manning, is on the budget conference committee and expects the House’s effort will ultimately fail. Agreements on differences require two votes each from the House and Senate conferees. “They don’t have two votes,” Land said, referring to the senators on the conference committee.

House Ways and Means Committee Chairman Dan Cooper, R-Piedmont, said if that happens, some House members may not vote for the final budget.

Meanwhile, the state is also trying to pass an extended waiting period for an abortion, changing the currently mandated one hour to a 24 hour period that starts only after receiving an ultrasound and hearing about the age of the fetus.  Via The State:

Lawmakers are negotiating a compromise on a bill to extend the waiting period for an abortion from one hour to 24 hours, but they’re running out of time with only four days left in the regular session.

The House version requires the wait to begin once an ultrasound test is performed and calls for a woman to be informed of the age of the fetus.

The Senate would have the wait begin after a woman downloads mandated information from a state health website. It also permits an ultrasound to be performed elsewhere and provides for exceptions for victims of rape, incest or when the woman’s life is in danger.

Sen. Kevin Bryant, an Anderson Republican who chairs the conference committee of House and Senate lawmakers who have thus far stalled in a compromise effort, plans to meet today with Rep. Greg Delleney, his House counterpart on the panel and the author of the House legislation, and offer some other ideas.

He said that either way, the committee will meet at least one more time and take a vote on the Senate proposal.

Finally, teenage pregnancy rates in Canada are dropping considerably.  Is there anything that the U.S could learn from? From the Globe and Mail:

The report, which appears in the current issue of The Canadian Journal of Human Sexuality, compares Statistics Canada figures with numbers from three other countries. The United States experienced a 25 per cent drop while England and Wales showed a more modest decline of 4.75 per cent. Sweden’s numbers, meanwhile, jumped by 19.1 per cent.

“It’s not necessarily that sex education in Canada is at such a high standard,” said Mr. McKay, who co-authored the report with SIECCAN’s Michael Barrett.

“In comparison to the United States, we tend to have a more balanced, sensible approach to adolescent sexual health. Generally speaking what you find is that the more a society has an accepting attitude toward the reality of adolescent sexuality, the lower the teen pregnancy rate is. Canadians tend to have a more relaxed attitude towards adolescent sexuality than people in the United States.”

Mr. McKay said America’s emphasis on abstinence-only sex ed “tends to result in a higher percentage of teens becoming pregnant,” as does the country’s lack of universal health care. Poverty is another factor.

“The United States has large, well-entrenched pockets of inner city poverty and that clearly is linked to higher teen pregnancy rates,” he said.

“In those communities where young women feel optimistic about their educational and employment opportunities, the [rates] tends to be lower.”

May 26, 2010

insurance ban on elective abortions limited – CNBC

UK Bishops Decry Abortion TV Ads – Catholic.net

Canada’s teen birth and abortion rate drops by 36.9 per cent – Globe and Mail

Oklahoma Legislature Overrides Abortion Reporting Bill Veto – Ms. Magazine

Cardinal wants abortion debate reopened – Montreal Gazette

Teen pregnancy rates fall in Canada: study – CTV.ca

Kagan’s abortion compromise puts her in the American mainstream – Leagle.com

Pro-lifers urge block on Brit TV abortion ad – BP News

Quebec Roman Catholic archbishop defends controversial comments on abortion – Winnipeg Free Press

Will Gov. Crist veto the ‘abortion bill,’ HB1143? – Palm Beach Post

Que. cardinal wants abortion debate reopened – Montreal Gazette

Scientists urge G8 to help reduce unsafe abortions – Toronto Star

CALIFORNIA LEADS THE NATION WITH DROP IN TEENAGE PREGNANCIES – SanFranciscoSentinel.com

PPFA abortions could soar via ‘telemed’ – BP News

Anti-abortion group to campaign for CA candidate – The Associated Press

Study Finds Condom Use Is Increasing – New York Times

U.S. women still prefer the pill, sterilization for contraception – USA Today

Vaginal ring could ward off HIV/AIDS – New Zimbabwe.com

States must be held to account over rights needed to end poverty – Reuters AlertNet

May 27, 2010

Gubernatorial hopefuls split on abortion views – Online Athens

Abortion bill running short on time – The State

Okla. gov. vetoes abortion bill on insurance – The Associated Press

How should schools handle education about sex? – Ottawa Citizen

Our teenage pregnancy rate drops quickly – Montreal Gazette

Rand Paul on Abortion – Reason Online

Teen pregnancy study falls prey to wishful thinking – National Post

SC legislators resume negotiations on $5B spending plan; abortion coverage … – CanadianBusiness.com

Gov. Brad Henry vetoes 4th abortion bill – NewsOK.com

Catholic Church’s position on birth control applies equally to men and women – Plain Dealer

Abortion bill running short on time – The State

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

News Law and Policy

Legal Experts to Appeals Court: Daleiden and His Anti-Choice Front Group Pose Threat to Abortion Access

Jessica Mason Pieklo

A series of legal briefs filed with a federal appeals court argue that David Daleiden and the Center for Medical Progress engaged in fraud that puts providers' and patients' lives at risk.

Legal experts from across the country filed “friend of the court” briefs last week pressing the Ninth Circuit Court of Appeals to leave in place an order permanently blocking David Daleiden and his anti-choice front group, the Center for Medical Progress, from releasing smear videos against Planned Parenthood.

In February, a federal district judge in California ruled Daleiden and his organization had engaged in a pattern of fraud in making the videos, which claim the reproductive health-care provider violated federal law by selling fetal tissue. Legally, patients are allowed to donate fetal tissue, and reproductive health-care centers are allowed to account for the reasonable costs associated with that donation.

Daleiden and CMP appealed that ruling to the Ninth Circuit Court of Appeals. Last week’s briefs were filed in opposition to Daleiden’s appeal.

The Southern Poverty Law Center and Feminist Majority Foundation filed one of the briefs, putting in context for the court how the videos fit into the framework of violence abortion providers and their patients face daily. The brief included detailed information about the well-documented uptick in violence and threats abortion providers have faced since the videos were released.

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“CMP’s actions fit within the same pattern of activity intended to threaten abortion providers and make them feel that they are not safe while working in their lawful professions providing constitutionally-protected medical care,” the brief stated.

Planned Parenthood Federation of America and Planned Parenthood Affiliates of California echoed that argument, detailing the effect on the organization’s efforts to provide reproductive health care since Daleiden and CMP first started releasing the videos last summer.

“The release of the fraudulently obtained and recklessly manipulated video tapes has caused enormous harm to Planned Parenthood, its staff, and its patients, and has threatened to jeopardize its ability to offer reproductive health care services to millions of predominantly low-income women, men and teens in America,” stated the brief.

“The Planned Parenthood clinicians who were portrayed in the videos have experienced substantial reputational and emotional harm, in addition to suffering from the increased violence and threats of violence described above, although they have not been found to have done anything wrong,” it continued.

The videos, first released last July, prompted investigations in at least a dozen states and Congress into Planned Parenthood’s fetal tissue practices.

So far, no investigation has uncovered any evidence of wrongdoing by Planned Parenthood employees. Daleiden, however, remains under criminal indictment in Texas for fraud in connection with his production and release of the videos and faces a separate lawsuit arguing his organization engaged in a criminal conspiracy when it produced and released them.