News Law and Policy

Briefs in Support of Arizona’s Pre-Viability Ban Show The Evolution of a Legal Challenge to Roe

Jessica Mason Pieklo

Briefs filed in support of Arizona's 20 week abortion ban show the evolution of the anti-choice legal strategy against Roe v. Wade.

Next month the Ninth Circuit Court of Appeals will hear arguments on the constitutionality of Arizona’s 20-week abortion ban. A district court upheld the ban earlier this year but in August a three-judge panel barred the state from enforcing it until the appellate court could consider its constitutionality. And as expected the case is being teed up as a challenge to Roe v. Wade. What’s even more interesting is just how that challenge may unfold.

In briefs in support of the ban, its chief defender, Maricopa County Attorney Bill Montgomery, makes the argument that states constitutionally can and should regulate abortions pre-viability, despite the fact that both Roe v. Wade and later Planned Parenthood v. Casey state that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify bans on nontherapeutic abortions.

According to Montgomery, both Roe and Casey assumed the comparative safety of abortion over childbirth, and neither case had the “benefit” of the “science” that supports so-called fetal pain bans. Because science has changed and the court has moved away from viability as a bright-line test for banning abortions in favor of the looser “undue burden” standard, Montgomery argues, Arizona’s pre-viabilty ban not only meets the state’s legitimate interest in protecting fetal life, it amounts to nothing more than a regulation of pre-viability bans since the law provides for an emergency exception for maternal life and health.

In support of his claims that science is on the side of the anti-choice movement Montgomery cites the legislative findings of fact passed by the Arizona legislature in support of the ban and the Robert Court’s decision in Gonzales v. Carhart, the case that famously upheld the federal Partial Birth Abortion Ban, a law itself grounded in advocacy masquerading as science. In that decision Justice Anthony Kennedy instructed federal courts to give legislative findings like the ones cited by Montgomery in his brief wide deference, even in matters where the scientific conclusions are in dispute. Anti-choice activists have taken this as an invitation to create “evidence” and “science” to support otherwise unconstitutional abrotion restrictions, just like the Arizona ban.

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What is unfolding is not the direct debate about a woman’s right to terminate a pregnancy, but a proxy debate on whether anti-choice science supports that right. The Ninth Circuit Court of Appeals may not agree with Montgomery’s framing on this issue, but Justice Kennedy and the conservative majority on the Roberts court seem to. And that is who Montgomery’s brief was really targeting.

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.”

News Family Planning

Lawsuit Challenges Arizona’s Attempt to Defund Planned Parenthood

Nicole Knight Shine

The Republican-backed law specifically targets abortion providers, excluding any facility from Medicaid that fails "to segregate taxpayer dollars from abortions, including the use of taxpayer dollars for any overhead expenses attributable to abortions.”

Planned Parenthood and the American Civil Liberties Union (ACLU) asked a federal court to block an Arizona law defunding Planned Parenthood, arguing in a legal challenge filed Thursday that the Arizona measure is “illegal.”

The GOP-backed law, signed by Republican Gov. Doug Ducey in May, specifically targets abortion providers, excluding any facility from Medicaid that fails “to segregate taxpayer dollars from abortions, including the use of taxpayer dollars for any overhead expenses attributable to abortions.”

Federal law already bars health-care providers from using Medicaid dollars for abortion care, except in cases of rape, incest, or life endangerment.

In an 18-page complaint, the plaintiffs argue that the restriction is impermissible under Medicaid statutes, and they ask for an injunction on the law, which goes into effect August 6. Planned Parenthood said in an emailed statement that the law could slash funding for birth control, cancer screenings, and preventive care, affecting more than 2,500 Medicaid patients in the state.

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The Arizona Health Care Cost Containment System, the state Medicaid agency, did not respond to a request for comment.

Jennifer Lee, staff attorney at the ACLU, called the Arizona law “another attempt to intimidate doctors who provide abortion and to punish low-income women in particular,” in a statement announcing the lawsuit. Planned Parenthood operates 11 medical centers in the state, including three in underserved and impoverished communities with high rates of infant mortality, according to the court filing.

At least ten states, including Arizona, have attempted to strip Planned Parenthood of funding—the fallout from a string of deceptive smear videos masterminded by David Daleiden, the head of the anti-choice front group the Center for Medical Progress, who now faces a felony record-tampering charge.

“This case is about the people who rely on us for basic care every day,” said Cecile Richards, president of Planned Parenthood Federation of America, in an announcement of the Arizona suit. “We’ll continue fighting in Arizona, and anywhere else there are efforts to block our patients from the care they need.”

The Arizona law represents the state’s second attempt to defund Planned Parenthood. In 2014, the Ninth Circuit Court of Appeals affirmed a lower court decision finding a similar defunding measure, HB 2800, violated federal Medicaid law.

In April, the federal Centers for Medicare & Medicaid Services sent a letter to all 50 states saying that cutting funding to qualified providers solely because they provide abortion care violates federal law.

Independent analysis suggests gutting Planned Parenthood funding exacts a toll on health care.

2015 report from the Congressional Budget Office indicated that health-care access would suffer under Planned Parenthood funding cuts, with the potential for $650 million in additional Medicaid spending over a decade and thousands of more births.

In Texas, births surged 27 percent among low-income women who were using injectable birth control but lost access to the service when the state cut Medicaid funding to Planned Parenthood, according to a study published in the New England Journal of Medicine.