Roundup: Reaction to the Blocked Nebraska Law and Its Potential Future

Robin Marty

Yesterday a judge blocked the implimentation of the "mental health screening" law in Nebraska.  Today, see reactions, and a look at its future prospects.

A federal judge blocked the mental health screenings for women seeking abortions in Nebraska, stating that the rule would “require medical providers to give untruthful, misleading and irrelevant information to patients.” 

Judge Laurie Smith Camp, who ruled on the case yesterday, made it very clear that she sees a multitude of potential issues in the law, according to the Omaha World Herald:

Camp let stand the legislative findings, which say the existing standard of care for screening and counseling women seeking abortions is not always adequate.

She also let stand a section requiring the Nebraska Department of Health and Human Services to publish a list of agencies that could help women with mental health concerns after they were screened for an abortion.

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But Camp found that Planned Parenthood was “likely to succeed” in attacking the key portions of the law.

She said the law puts abortion providers in immediate jeopardy of “crippling civil litigation,” which could force them to stop practicing and cost women access to abortion.

The law, Camp wrote, provides women who come to regret their abortions with “a target to blame — a physician stripped of the usual statutory and common law defenses and made civilly liable for the most extensive damages, by way of an ‘informed consent’ mandate that is either impossible to satisfy, or so vague that the physician (and a jury) are left to speculate about its meaning.”

The law also provides such women and their lawyers with a “very substantial financial incentive” to sue, Camp said.

In addition, the judge said, while the legislative findings express concern for women’s health, that concern was undermined by the plain language of the bill and the absence of similar protections regarding other medical procedures.

Despite such concerns, anti-choice activists have made it clear that they feel the case should move forward.  Via OneNewsNow:

Dave Bydalek of Family First in Nebraska is not surprised. “I think the real key to this whole thing will be the hearing that takes place on a permanent injunction,” he comments. That should happen in two or three months, but I think that the judge will get a better understanding of what the law really does and why it’s constitutional when we get to put on evidence at that time.”

Lifenews.com agrees.

[T]he Nebraska Catholic Conference says it is abortion business like Planned Parenthood that “have compromised the standard of care for counseling and screening of patients in order to reduce costs and maximize profits.”

“In hundreds of cases each day, known risk factors for physical and psychological complications are not being detected because of negligent pre-abortion screening,” it says. “Women are suffering from avoidable physical and psychological complications that may have been prevented or minimized if the proper pre-abortion screening standards had been met.”

According to Lifenews, “Shannon Kingery, a spokeswoman for the Nebraska Attorney General’s office, told AP the state would respect the order and continue to defend the law in court.”  The World Herald instead says simply that “A spokeswoman for Bruning’s office, Shannon Kingery, said the state will respect Camp’s decision but is reviewing its options.” 

Either way, the state has until July 26th to decide if it wishes to further pursue the case, or simply abandon the plan. Judge Smith Camp would be the one to rule on the case should the state Attorney General decide to proceed.

Mini Roundup: Doctors are allegedly founding their own “Tea Party” movement, a “pro-choicer” explains why he respects Sharron Angle’s position on abortion (and that all pro-choicers really just want unfettered, rampant promiscuous sexual relationships), and a town in Iceland is so desperate to up its birth rate they are considering banning birth control or creating a “Love Week” to get more pregnant women.

July 14, 2010

US Taxpayers to Subsidize New UN Agency Promoting Abortion – North Shore News

Spain’s highest court decides not to suspend new abortion law while it hears … – The Canadian Press

Judge blocks new Neb. abortion screening law – The Associated Press

Health reform will help reduce the number of abortions – The Hill

Americans Split on Kagan Nomination, Oppose Her More Than Sotomayor – LifeNews.com

N. Ireland Withdraws Controversial Abortion Guidelines – Lifesite

Thousands of doctors organize National Doctors Tea Party Movement – Examiner.com

Health Law Sparks Abortion Fight In Pennsylvania – NPR

Nebraska Judge Blocks Draconian Abortion Law – Firedoglake

Questions over abortion in new federal health plan – The Associated Press

New Nebraska abortion law blocked – UPI.com

Anti-Abortion Groups Slam Administration Over Federal Funding for Pa. Health Plan – FOXNews

Missouri governor lets abortion law take effect – The Associated Press

Planned Parenthood’s statement on new abortion law – KMOV.com

Personhood Amendment 62 Campaign Launches in Colorado – Christian Web News

Why Sharron Angle’s rape/abortion position makes pro-choice me respect her more – Pajamas Media

Kenya: US Accused of Paying Groups to Boost ‘Yes’ Camp Support – AllAfrica.com

Judge blocks abortion screening law – Omaha World-Herald

Grants raise specter of state abortion funds – Washington Times

New health care law raises questions on abortions – USA Today

NJ Dems lobby to restore family planning money – Asbury Park Press

2 NJ lawmakers seek restoration of $7.5M grant for family planning, health clinics– NorthJersey.com

Young Palin, Johnston can make it work – Houston Chronicle

Contraception Conundrum – National Review Online

Birth Control Ban Imposed in South Iceland Town? – IcelandReview

Washington pharmacy board making Plan B rules – Seattle Times

100 health experts to lead major HIV conference – Pink Paper

Transforming AIDS Care In Africa – Forbes

Will Obama Keep up the Fight on Global AIDS? – Huffington Post

What Can Would-be Teen Moms Everywhere Learn From the Saga of Levi Johnston … – New York Magazine

July 15, 2010

Kanjorski focuses on not insuring elective abortions – Wilkes Barre Times-Leader

Nebraska: Judge Blocks Abortion Law – New York Times

States try new tactics to restrict abortion – Stateline.org

The fight for free birth control continues – Salon

Group protests use of graphic images at weekly anti-abortion demonstration – The Missoulian

What It’s Like to Have an Abortion in Texas: TV Shows Finally Grappling with … – AlterNet

Judge blocks Nebraska law requiring mental health screening for abortion – Washington Post

Life and Death in California – American Spectator

EMILY’s List vs. Sarah Palin – Boston Globe

Governor Jay Nixon Allows Abortion Law to take Effect – The State Column

Democrat Bart Stupak Accuses Pro-Life Groups of ‘Politicizing’ Abortion Issue … – North Shore News

Sex Miseducation: Prof Fired for Pushing Catholic ‘Natural Law’ – Religion Dispatches

Evangelical group releases documentary on the pill as an abortifacient – Catholic News Agency

Unsafe Abortion, A Major Cause Of Maternal Death In Ghana – Peace FM Online

Pa. carrier using texting program to promote maternal, child health – IFAwebnews.com

Study Confirms Vaccine Could Prevent More Cases Of Cervical Cancers Than … – Medical News Today

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Commentary Human Rights

When It Comes to Zika and Abortion, Disabled People Are Too Often Used as a Rhetorical Device

s.e. smith

Anti-choicers shame parents facing a prenatal diagnosis and considering abortion, even though they don't back up their advocacy up with support. The pro-choice movement, on the other hand, often finds itself caught between defending abortion as an absolute personal right and suggesting that some lived potentials are worth more than others.

There’s only one reason anyone should ever get an abortion: Because that person is pregnant and does not want to be. As soon as anyone—whether they are pro- or anti-choice—starts bringing up qualifiers, exceptions, and scary monsters under the bed, things get problematic. They establish the seeds of a good abortion/bad abortion dichotomy, in which some abortions are deemed “worthier” than others.

And with the Zika virus reaching the United States and the stakes getting more tangible for many Americans, that arbitrary designation is on a lot of minds—especially where the possibility of developmentally impaired fetuses is concerned. As a result, people with disabilities are more often being used as a rhetorical device for or against abortion rights rather than viewed as actualized human beings.

Here’s what we know about Zika and pregnancy: The virus has been linked to microcephaly, hearing loss, impaired growth, vision problems, and some anomalies of brain development when a fetus is exposed during pregnancy, according to the Centers for Disease Control and Prevention. Sometimes these anomalies are fatal, and patients miscarry their pregnancies. Sometimes they are not. Being infected with Zika is not a guarantee that a fetus will develop developmental impairments.

We need to know much, much more about Zika and pregnancy. At this stage, commonsense precautions when necessary like sleeping under a mosquito net, using insect repellant, and having protected sex to prevent Zika infection in pregnancy are reasonable, given the established link between Zika and developmental anomalies. But the panicked tenor of the conversation about Zika and pregnancy has become troubling.

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In Latin America, where Zika has rampantly spread in the last few years, extremely tough abortion restrictions often deprive patients of reproductive autonomy, to the point where many face the possibility of criminal charges for seeking abortion. Currently, requests for abortions are spiking. Some patients have turned to services like Women on Web, which provides assistance with accessing medical abortion services in nations where they are difficult or impossible to find.

For pro-choice advocates in the United States, the situation in Latin America is further evidence of the need to protect abortion access in our own country. Many have specifically using Zika to advocate against 20-week limits on abortion—which are already unconstitutional, and should be condemned as such. Less than 2 percent of abortions take place after 20 weeks, according to the Guttmacher Institute. The pro-choice community is often quick to defend these abortions, arguing that the vast majority take place in cases where the life of the patient is threatened, the fetus has anomalies incompatible with life, or the fetus has severe developmental impairments. Microcephaly, though rare, is an example of an impairment that isn’t diagnosable until late in the second trimester or early in the third, so when patients opt for termination, they run smack up against 20-week bans.

Thanks to the high profile of Zika in the news, fetal anomalies are becoming a talking point on both sides of the abortion divide: Hence the dire headlines sensationalizing the idea that politicians want to force patients to give birth to disabled children. The implication of leaning on these emotional angles, rather than ones based on the law or on human rights, is that Zika causes disabilities, and no one would want to have a disabled child. Some of this rhetoric is likely entirely subconscious, but it reflects internalized attitudes about disabled people, and it’s a dogwhistle to many in the disability community.

Anti-choicers, meanwhile, are leveraging that argument in the other direction, suggesting that patients with Zika will want to kill their precious babies because they aren’t perfect, and that therefore it’s necessary to clamp down on abortion restrictions to protect the “unborn.” Last weekend, for instance, failed presidential candidate Sen. Marco Rubio (R-FL) announced that he doesn’t support access to abortion for pregnant patients with the Zika virus who might, as a consequence, run the risk of having babies with microcephaly. Hardline anti-choicers, unsurprisingly, applauded him for taking a stand to protect life.

Both sides are using the wrong leverage in their arguments. An uptick in unmet abortion need is disturbing, yes—because it means that patients are not getting necessary health care. While it may be Zika exposing the issue of late, it’s a symptom, not the problem. Patients should be able to choose to get an abortion for whatever reason and at whatever time, and that right shouldn’t be defended with disingenuous arguments that use disability for cover. The issue with not being able to access abortions after 20 weeks, for example, isn’t that patients cannot access therapeutic abortions for fetuses with anomalies, but that patients cannot access abortions after 20 weeks.

The insistence from pro-choice advocates on justifying abortions after 20 weeks around specific, seemingly involuntary instances, suggests that so-called “late term abortions” need to be circumstantially defended, which retrenches abortion stigma. Few advocates seem to be willing to venture into the troubled waters of fighting for the right to abortions for any reason after 20 weeks. In part, that reflects an incremental approach to securing rights, but it may also betray some squeamishness. Patients don’t need to excuse their abortions, and the continual haste to do so by many pro-choice advocates makes it seem like a 20-week or later abortion is something wrong, something that might make patients feel ashamed depending on their reasons. There’s nothing shameful about needing abortion care after 20 weeks.

And, as it follows, nor is there ever a “bad” reason for termination. Conservatives are fond of using gruesome language targeted at patients who choose to abort for apparent fetal disability diagnoses in an attempt to shame them into believing that they are bad people for choosing to terminate their pregnancies. They use the specter of murdering disabled babies to advance not just social attitudes, but actual policy. Republican Gov. Mike Pence, for example, signed an Indiana law banning abortion on the basis of disability into law, though it was just blocked by a judge. Ohio considered a similar bill, while North Dakota tried to ban disability-related abortions only to be stymied in court. Other states require mandatory counseling when patients are diagnosed with fetal anomalies, with information about “perinatal hospice,” implying that patients have a moral responsibility to carry a pregnancy to term even if the fetus has impairments so significant that survival is questionable and that measures must be taken to “protect” fetuses against “hasty” abortions.

Conservative rhetoric tends to exceptionalize disability, with terms like “special needs child” and implications that disabled people are angelic, inspirational, and sometimes educational by nature of being disabled. A child with Down syndrome isn’t just a disabled child under this framework, for example, but a valuable lesson to the people around her. Terminating a pregnancy for disability is sometimes treated as even worse than terminating an apparently healthy pregnancy by those attempting to demonize abortion. This approach to abortion for disability uses disabled people as pawns to advance abortion restrictions, playing upon base emotions in the ultimate quest to make it functionally impossible to access abortion services. And conservatives can tar opponents of such laws with claims that they hate disabled people—even though many disabled people themselves oppose these patronizing policies, created to address a false epidemic of abortions for disability.

When those on either side of the abortion debate suggest that the default response to a given diagnosis is abortion, people living with that diagnosis hear that their lives are not valued. This argument implies that life with a disability is not worth living, and that it is a natural response for many to wish to terminate in cases of fetal anomalies. This rhetoric often collapses radically different diagnoses under the same roof; some impairments are lethal, others can pose significant challenges, and in other cases, people can enjoy excellent quality of life if they are provided with access to the services they need.

Many parents facing a prenatal diagnosis have never interacted with disabled people, don’t know very much about the disability in question, and are feeling overwhelmed. Anti-choicers want to force them to listen to lectures at the least and claim this is for everyone’s good, which is a gross violation of personal privacy, especially since they don’t back their advocacy up with support for disability programs that would make a comfortable, happy life with a complex impairment possible. The pro-choice movement, on the other hand, often finds itself caught between the imperative to defend abortion as an absolute personal right and suggesting that some lived potentials are worth more than others. It’s a disturbing line of argument to take, alienating people who might otherwise be very supportive of abortion rights.

It’s clearly tempting to use Zika as a political football in the abortion debate, and for conservatives, doing so is taking advantage of a well-established playbook. Pro-choicers, however, would do better to walk off the field, because defending abortion access on the sole grounds that a fetus might have a disability rings very familiar and uncomfortable alarm bells for many in the disability community.

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