News Abortion

Cuccinelli Seeking to Override Virginia Medical Board

Robin Marty

Not happy that the Board of Health isn't shutting down more Virginia abortion clinics, the Attorney General is telling them to meet again.

Due to an enormous outpouring of public support and activist presence at the July Board of Health meeting on TRAP legislation that could shut down many of the clinics in Virginia that provide abortion, the BOH voted to grandfather in existing clinics and not make them subject to the new rules.

From the moment they announced their decision, anti-choice Attorney General Ken Cuccinelli vowed he would make them reconsider. It turns out he was right.

Via the Washington Examiner:

Health officials said Monday that they will meet again, on Sept. 14, to reconsider their decision to exempt existing clinics, reopening an election-year abortion debate in a state with several hotly contested races on the November ballot, including the presidential election.

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“I’ll put it this way, until the board obtains certification from the attorney general’s office, the regulatory process can’t move forward,” said Joe Hilbert, Health Department director of governmental and regulatory affairs. “And our challenge is to find a way to keep it moving forward.”

The new hearing is believed to be in part pushed for by Virginia Governor Bob McDonnell, chairman of the new “have your rapist’s baby” RNC platform.

Analysis Law and Policy

Supreme Court Ruling on Texas Law Reverberates Around the Country

Teddy Wilson

"To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall," said Jessica Mason Pieklo, vice president for law and the courts at Rewire. "The good news is that the Supreme Court's decision in Whole Woman's Health provides advocates with a solid foundation to begin those next fights."

The U.S. Supreme Court struck down Monday two provisions in Texas’ anti-abortion omnibus law known as HB 2, and with that ruling the dominos began to fall. Similar anti-abortion laws in Wisconsin and Mississippi were blocked Tuesday by the Supreme Court, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

However, significant obstacles remain to ensure access to reproductive health care throughout the country. A number of states have in place slightly different variations of the requirements struck down by the Court, which means it remains to be seen how lower courts may apply Monday’s ruling to restrictions that aren’t exactly like those included in Whole Woman’s Health v. Hellerstedt.

Monday’s decision is a significant victory for patients and providers, but it doesn’t guarantee that targeted regulation of abortion providers (TRAP laws) across the country will start to fall immediately, explained Jessica Mason Pieklo, vice president for law and the courts at Rewire.

“To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall,” Pieklo said. “The good news is that the Supreme Court’s decision in Whole Woman’s Health provides advocates with a solid foundation to begin those next fights.”

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Dozens of states in recent years have passed TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to clinics and physicians in other medical fields.

Many anti-abortion measures introduced around the country resemble copycat legislation drafted by Americans United for Life (AUL), an anti-choice organization that distributes proposals to state lawmakers as part of a strategy to flood state legislatures with anti-choice bills.

As Rewire previously reported, key players in the development of HB 2 were deeply connected to AUL and other conservative lobby groups.

The Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that two TRAP provisions under HB 2 placed “a substantial obstacle in the path of women seeking an abortion,” and constituted “an undue burden on abortion access.”

Specifically, the Court struck down the requirement that physicians who provide abortion care must have admitting privileges at a hospital within 30 miles of the facility where the physician will provide abortion services. The Court also struck down the requirement that facilities providing abortions meet ambulatory surgical center (ASC) requirements, which involve prohibitively expensive medically unnecessary building renovations.

There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.

Laws requiring abortion providers have admitting privileges remain in effect in Arizona, Arkansas, Florida, Indiana, Kansas, Missouri, South Carolina, Tennessee, and Utah.

These laws typically require physicians have admitting privileges at a hospital near the facility where they provide abortion care. Some of these laws require that the hospitals provide OB-GYN services, and some require the physician to be board certified in OB-GYN medicine.

Other laws require that the hospital be no more than 30 miles from the facility where the abortion is performed, or have varied in defining the geographic boundary.

The law that was struck down in Mississippi required the admitting privileges be obtained at a “local hospital.” And Utah’s current law requires the hospital be within a “travel time of 15 minutes or less,” while Florida’s recently passed law requires the hospital be within a “reasonable proximity.”

There are 24 states that have passed laws requiring facilities in which surgical abortion services are performed to meet ambulatory surgical center standards that go beyond what is needed to ensure patient safety, and another 17 states require clinics that may only provide medication abortion to meet these same standards, according to the Guttmacher Institute.  

As Nick Bagley, an assistant professor at the University of Michigan School of Law, told Vox, similar laws that have been passed in other states may face legal challenges in the wake of Whole Woman’s Health, but the details of those challenges may vary. “The Supreme Court only applies to Texas,” Bagley said. “Other states will have slightly different laws with slightly different facts to argue over.” 

Florida and Indiana TRAP Laws Set to Take Effect 

This year Florida passed its own Texas-style anti-choice omnibus law, which takes effect Friday. However, there are some differences between the two laws, including differences in the types of regulations of physicians who provide abortion care.

Clinics that offer abortion services in Florida will be required to have a written patient transfer agreement, which includes the transfer of the patient’s medical records, with a hospital within “reasonable proximity” to the facility. Physicians also will be required to have admitting privileges at a hospital within “reasonable proximity” to their clinic.

The law also mandates annual inspections of all licensed abortion clinics, requires any medical facility in which abortions are performed to submit a monthly report, and prohibits state or local governments from entering into contracts with organizations that provide abortion services.

State Sen. Kelli Stargel (R-Lakeland), who voted for the bill, expressed concern after the senate vote that the bill’s language could become an issue in the courts. “Those clauses gave me concern that it would make it as though our intent was to close down all abortion clinics in the state,” Stargel told the Tampa Bay Times. “That was not the intent of this bill.”

After the Supreme Court’s ruling on Monday, Stargel reiterated that despite the bill’s similarities to the Texas law, it was not lawmakers intent to restrict access to abortion. “In Florida, we passed [the law] to safeguard women’s health, not to close abortion clinics,” Stargel said in a statement, reported the Florida Sun Sentinel.

Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told the Miami Herald that the language of the bill may be different, but that Florida lawmakers had the same intent as Texas lawmakers: to shutter abortion clinics.

“It’s definitely different language,” said Goodhue. “But the intent is the same.”

Planned Parenthood has filed a lawsuit challenging the law, however, the organization is not challenging the admitting privileges requirement. 

Goodhue told the Florida Sun Sentinel that the organization will determine if there are grounds for other lawsuits in the future. “Right now, we’re seeking emergency relief on the other three provisions, but we’ll make sure that access to care is protected,” Goodhue said.

Gov Rick Scott (R), who signed the bill into law in March, said during a press conference Monday that his administration is reviewing the Supreme Court’s decision, reported the Miami Herald

Lawmakers in Indiana have in recent years passed multiple laws to restrict access to abortion, including laws that have provisions mandating that physicians have admitting privileges and other reporting requirements

Mike Fichter, president and CEO of Indiana Right to Life, said in a statement that the Supreme Court showed “utter disregard for women’s health and safety,” and defended a similar law passed state lawmakers this year.

“We will be reviewing the Supreme Court’s decision thoroughly to see how this legal precedent could affect Indiana’s laws on admitting privileges and abortion facility building standards,” Fichter said. 

An omnibus abortion bill passed in 2011 contained multiple abortion restrictions, including a provision that a physician performing an abortion must have admitting privileges at a hospital located in the county where abortions are provided or a contiguous county.

The law also allowed for a physician to meet the requirement by entering into an agreement with a physician who has admitting privileges at a hospital in the county or contiguous county.

Another similar law was passed by Indiana lawmakers this year, which made numerous changes to state laws, including requiring forced counseling and mandatory ultrasounds for abortion patients, creating regulations on physicians who provide abortion care, and banning fetal tissue donation that has led to the development of vaccines and other public health benefits

The law created a requirement that a written agreement between a physician performing an abortion and a physician who has written admitting privileges at a hospital in the county or contiguous county be renewed annually.

The law also requires the state department of health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.

Gov. Mike Pence (R) signed the bill into law in March, and it will go into effect on Friday.

Ali Slocum, spokesperson for Planned Parenthood of Indiana and Kentucky, told the Indianapolis Star that the organization does not have any immediate plans to challenge the law in court. “We are focused on what is currently in the pipeline. It is possible that the standard that the court set [Monday] could be used to challenge restrictions in other states,” Slocum said.

Efforts in State Legislatures to Repeal Laws

In some states lawmakers and advocacy groups may push to repeal similar laws following the Whole Woman’s Health decision.

Arizona lawmakers have passed several anti-choice laws in recent years and, like Texas and Florida lawmakers, justified those regulations as necessary to ensure the health and safety of women in the state.

Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona, said in a statement that the Supreme Court made a “clear statement” that laws that restrict access to abortion care are unconstitutional.

“Arizona is a large state, with population spread across many rural areas. Laws that delay care, require travel over great distances and overnight stays certainly place real-life burdens on women seeking our care,” Liggett said.

Arizona Senate Minority Leader Katie Hobbs told the Arizona Republic that she will lead the effort in the legislature to repeal similar laws. “No woman or doctor should be punished for receiving or providing essential medical care,” Hobbs said. “These restrictions have never truly been about women’s health.”

However, repealing anti-choice laws in the GOP-dominated Arizona state legislature may prove difficult.

Republicans hold an 18-12 majority in the state senate and a 36-24 majority in the state house, and they have introduced dozens of anti-choice bills in the past several years. There have been seven laws to restrict access to abortion passed by Arizona lawmakers, including a law similar to Texas’ HB 2 which requires abortion providers to have admitting privileges.

Those efforts have been spearhead by the Center for Arizona Policy, a conservative think tank that promotes anti-choice, anti-LGBTQ, and so-called religious freedom legislation.

Cathi Herrod, president of the Center for Arizona Policy, said in a statement that the Supreme Court’s decision eliminated “common-sense safety precautions” for women seeking abortion care. “To give the abortion industry a blanket exemption from laws applicable to every other medical facility is unconscionable,” Herrod said.

Josh Kredit, general counsel for the Center for Arizona Policy, told the Arizona Republic that the Supreme Court’s decision suggest that abortion providers should be treated differently that other health-care providers.

“They are arguing they should be exempt from garden-variety health and safety regulations,” Kredit said. “It was clear that Texas, when it passed these, was focusing on protecting women, just like many of our laws that we pass in Arizona.”

Dr. Thomas M. Gellhaus, president of the American College of Obstetricians and Gynecologists, said in a statement that the Court’s decision made it clear these laws do not improve the health and safety of patients seeking abortion. Said Gellhaus: “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”

“Of course, this is not the end of the battle when it comes to abortion access,” Gellhaus added. “In dozens of states, women are living under laws that impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more. None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship. We will continue to oppose these laws and to promote safe access to legal abortion for our patients.”

News Law and Policy

Virginia School Board Asks Supreme Court to Step In on Trans Rights

Jessica Mason Pieklo

Attorneys representing a Virginia school board want the Supreme Court to block the Obama administration's efforts at protecting transgender students.

Lawyers for a Virginia school district, according to a Tuesday filing, will ask the Supreme Court to intervene in the case of a transgender student who has sued for the right to use school bathrooms consistent with his gender identity.

The case involves Gavin Grimm, a transgender student who sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender.” Grimm’s attorneys argue that the rule, which effectively expels transgender students from communal restrooms and requires them to use “alternative” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy, but the lower court refused, ruling the school board’s policy did not violate the ban on sex discrimination in Title IX. The lower court also ruled the privacy interests of other students outweighed potential harm to Grimm in using a different bathroom. Grimm’s attorneys appealed.

In the interim, the Obama administration stepped in filing an appellate brief on Grimm’s behalf and arguing the Department of Education’s official position was that Title IX protected Grimm’s rights to use a restroom consistent with his gender identity. And in April, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled in favor of Grimm, holding “the [Education] Department’s interpretation of its own regulation … as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case.”

The full panel of judges for the Fourth Circuit refused in May to rehear the case, leaving in place the original order.

The petition to be filed with the Roberts Court asks the justices to re-examine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent states federal agencies like the Department of Education have substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX.

Earlier this term the Court turned away a similar challenge to the Department of Education’s interpretation of its regulations with regards to student loan financing.

According to attorneys for the school board, the Roberts Court must take up the Grimm case because the fight over transgender student bathroom access “raises fundamental issues of bodily privacy rights” in addition to serious questions about agency authority and constitutional separation of powers.

The petition will also ask the Roberts Court to issue a stay of the Fourth Circuit decision.

Attorneys representing Grimm will have an opportunity to respond to the filing. Given the Roberts’ Court current calendar, should the Court agree to take the case, the earliest it would hear arguments is next year.