Roundup: Lawyer Says Only Way To Not Violate LB594 Is To “Cease Providing Abortion Care”

Robin Marty

Planned Parenthood of the Heartland yesterday announced their lawsuit against LB594.

Planned Parenthood of the Heartland yesterday announced their lawsuit against Nebraska politicians who passed the a law requiring all women seeking abortion be screened for mental health issues. Planned Parenthood claims that the requirements are vague, unenforceable, and include false or misleading science, creating a law that is completely unenforceable.

From Channel 7 News:

Planned Parenthood, which runs one of two abortion clinics in Nebraska, has been critical of the measure, saying it could be difficult to comply with and could give women irrelevant information.

“This act is an attack on our patients. It is an attack on providers. And it is an attack on the ethics and integrity of the medical profession. It is about intimidation and not health care,” the lawsuit read.Under the law, doctors would have to screen for risk factors for post-abortion complications based on an almost limitless rang of information published in medical studies, even studies with contested and ambiguous conclusions. The law also doesn’t provide doctors any guidance about how to evaluate which of the findings to include when they screen patients.

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“Many of them are decades old; some of them — a century old. Many, of course, are out of date. Many have been debunked. Many are irrelevant to the patient’s care,” said Planned Parenthood’s CEO Jill June.

The Omaha World Herald reports a few of the tidbits of information doctors are supposed to provide to women before the procedure.

A study in Nigeria that concluded Protestant women ran a higher risk of heavy bleeding after abortion.

A 1970s study of cervical lacerations and other complications from abortions done before current methods were adopted.

Studies linking psychological problems and abortion that rely on faulty and unreliable reporting of past behavior.

And, of course, you mustn’t forget the old “abortion causes breast cancer” meme.

But anti-choice activists say the rule is not unclear or hard to implement.  From the same article:

Greg Schleppenbach, a lobbyist for the Nebraska Catholic Conference, disputed the claim about the difficulty of complying with the law.

He said the law requires simply that abortion doctors meet the same standard as all other physicians regarding informed consent.

Abortion doctors can use their own judgment about providing information to patients as long as they can justify their decisions in court, he said.

“They’re worried about the fact they’re going to have to live up to a reasonable standard that’s going to take a little more time and cost a little bit more money,” Schleppenbach said.

Use your own judgement?  That sounds like a fine, specific legal standard that should have no court challenges.

Mimi Liu of Planned Parenthood Federation of America states that the lack of definable standard leaves a doctor incapable of complying fully to the new law.  Via the Lincoln Journal Star:

“Since it is impossible to comply, there is one way, and only one way, that a physician can be certain he or she is not violating LB594: Cease providing abortion care,” Liu said by phone from Washington, D.C., during a Monday morning news conference in Lincoln.

“That amounts to a ban on a woman’s right to choose to terminate her pregnancy.”

The bill is currently scheduled to go into effect on July 15th.

Mini-Roundup: Randall Terry of Operation Rescue worries about Elena Kagan’s “wacked-out views,” and the protest against Justice Stevens is just all around odd (video).

June 28th, 2010

What Kind of Justice Would Kagan Be? – National Catholic Register

Promising Steps Toward International Women’s Health – Huffington Post

The Rhetoric That Shaped The Abortion Debate – GPB

Anti-abortion activists protest Kagan confirmation hearings – Boston Globe

Planned Parenthood Challenges Neb. Abortion Law – KETV Omaha

The Rhetoric That Shaped The Abortion Debate – NPR

New abortion law challenged – Omaha World-Herald

Kagan Promises Impartiality as Hearings Open – New York Times

Can fetuses feel pain? – The Week Magazine

Abortion Protesters Target Stevens on Final Day – CBS News

Planned Parenthood sues over Neb. abortion law – msnbc.com

Crist veto blocks Fla. abortion opt-out – BP News

Modest Kagan protest dominated by anti-abortion activists – UPI.com

Abortion of Foetus Up to 24 Weeks, Can They Feel Pain – Pattaya Daily News

Planned Parenthood files suit over Nebraska abortion law – Lincoln Journal Star

More find it harder to afford abortion services – Irish Times

A viewer’s guide to the Kagan confirmation hearing – San Francisco Chronicle

Bench Memos – National Review Online

Male Birth Control Pill Unveiled [Still Being Tested] – IndyPosted

The New Contraceptive Order Can Only Kill Itself – National Catholic Register

Portuguese bishop urges ‘realism’ on homosexual unions, birth control – Catholic Culture

Blood test will tell women when they will hit menopause – Tech Jackal

HIV in America: Why You Should Get Tested – Huffington Post

June 29th, 2010

World Links: ‘Blood Phones,’ Abortion Hotline in Pakistan – PBS

Why a New Study on Fetal Pain Matters – New York Magazine

National Abortion Fight Takes First Step in Nebraska – Watchdog

Bumpers the new billboards – Attleboro Sun Chronicle

G8 Pledges For Maternal, Child Health Efforts Fall Short Of $10B Goal – Medical News Today

Peaceful protest achieves more – Calgary Herald

Summits short on substance – Hamilton Spectator

NJ Assembly restores $7.5M for family planning clinics serving uninsured women – The Star-Ledger – NJ.com

2 sides seek vote on abortion bill – The Journal News | LoHud.com

News Abortion

Study: United States a ‘Stark Outlier’ in Countries With Legal Abortion, Thanks to Hyde Amendment

Nicole Knight Shine

The study's lead author said the United States' public-funding restriction makes it a "stark outlier among countries where abortion is legal—especially among high-income nations."

The vast majority of countries pay for abortion care, making the United States a global outlier and putting it on par with the former Soviet republic of Kyrgyzstan and a handful of Balkan States, a new study in the journal Contraception finds.

A team of researchers conducted two rounds of surveys between 2011 and 2014 in 80 countries where abortion care is legal. They found that 59 countries, or 74 percent of those surveyed, either fully or partially cover terminations using public funding. The United States was one of only ten countries that limits federal funding for abortion care to exceptional cases, such as rape, incest, or life endangerment.

Among the 40 “high-income” countries included in the survey, 31 provided full or partial funding for abortion care—something the United States does not do.

Dr. Daniel Grossman, lead author and director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California (UC) San Francisco, said in a statement announcing the findings that this country’s public-funding restriction makes it a “stark outlier among countries where abortion is legal—especially among high-income nations.”

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The researchers call on policymakers to make affordable health care a priority.

The federal Hyde Amendment (first passed in 1976 and reauthorized every year thereafter) bans the use of federal dollars for abortion care, except for cases of rape, incest, or life endangerment. Seventeen states, as the researchers note, bridge this gap by spending state money on terminations for low-income residents. Of the 14.1 million women enrolled in Medicaid, fewer than half, or 6.7 million, live in states that cover abortion services with state funds.

This funding gap delays abortion care for some people with limited means, who need time to raise money for the procedure, researchers note.

As Jamila Taylor and Yamani Hernandez wrote last year for Rewire, “We have heard first-person accounts of low-income women selling their belongings, going hungry for weeks as they save up their grocery money, or risking eviction by using their rent money to pay for an abortion, because of the Hyde Amendment.”

Public insurance coverage of abortion remains controversial in the United States despite “evidence that cost may create a barrier to access,” the authors observe.

“Women in the US, including those with low incomes, should have access to the highest quality of care, including the full range of reproductive health services,” Grossman said in the statement. “This research indicates there is a global consensus that abortion care should be covered like other health care.”

Earlier research indicated that U.S. women attempting to self-induce abortion cited high cost as a reason.

The team of ANSIRH researchers and Ibis Reproductive Health uncovered a bit of good news, finding that some countries are loosening abortion laws and paying for the procedures.

“Uruguay, as well as Mexico City,” as co-author Kate Grindlay from Ibis Reproductive Health noted in a press release, “legalized abortion in the first trimester in the past decade, and in both cases the service is available free of charge in public hospitals or covered by national insurance.”

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.