News Law and Policy

What’s Really Behind the Oklahoma AG’s Request for SCOTUS Review of RU-486 Restrictions?

Jessica Mason Pieklo

The chances of U.S. Supreme Court intervention are so slim that something else has to be behind the petition for review.

Oklahoma Attorney General Scott Pruitt announced Wednesday that he’s asked the United States Supreme Court to step in and review a unanimous state supreme court decision that overturned an Oklahoma law banning the off-label use of RU-486.

First passed in 2011 and immediately challenged by the Center for Reproductive Rights, the law would have banned any off-label use of medications for abortion or treatment of ectopic pregnancy while explicitly allowing off-label use of the same medications for other purposes. According to the lawsuit filed in Oklahoma state court, the law not only jeopardizes women’s health by preventing providers from using safe, effective methods available for performing medication abortions, but also undermines women’s ability to exercise the full range of their constitutionally-protected reproductive rights.
 
The law was temporarily blocked in October 2011 and then permanently struck down by a district court judge in May 2012. A unanimous decision from the Oklahoma Supreme Court in December 2012 upheld the lower court’s decision to strike the law as unconstitutional under the U.S. Constitution.

“Both a state district judge and all nine justices on the Oklahoma Supreme Court have previously affirmed what has been the established law of the land for more than 40 years: that the right to reproductive choice is fundamental and protected under the United States Constitution,” said Nancy Northup, president and CEO at the Center for Reproductive Rights, in an email release. “We’re confident, despite state officials’ relentless hostility toward women’s rights and health and their refusal to heed the well-founded judgments of these courts, that this campaign to deny women access to essential reproductive health care will fail at this stage as well.”

Filing for review of the decision is no guarantee the U.S. Supreme Court will take up the case. Typically only about 1 to 2 percent of such petitions are granted, but apparently those odds haven’t deterred Pruitt, who told the Tulsa World it was his duty to file the appeal to protect the health of Oklahoma’s women. “There is strong evidence that the off-label use of abortion-inducing drugs leads to serious infections and death for many healthy, unsuspecting women,” Pruitt said. “This is not OK. Our job is to protect the citizens of Oklahoma and defend the state constitution, which does not provide the right to abortion.”

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Given that the decision is unanimous and issued by a state supreme court interpreting a matter of state law, it is unlikely that the U.S. Supreme Court will step in and review, let alone overturn the previous decisions. Pruitt, a prominent and accomplished conservative attorney must know this. But he’s also up for re-election in 2014, which means now is the time to shore up his donor base. Could that explain the plea to the U.S. Supreme Court here?

Roundups Politics

Campaign Week in Review: Clinton Hits Back Against GOP’s Voter Suppression Efforts

Ally Boguhn

“When [Scott] Walker's Republican allies sat down to write this voter ID law, they knew full well it would unfairly target communities of color and prevent 300,000 mostly poor, elderly and student Wisconsinites from voting,” Clinton wrote. “In fact, that was the whole idea.”

Donald Trump secured enough delegates to win the Republican presidential nomination this week, and Democratic candidate Hillary Clinton sounded off on GOP-imposed voting restrictions.

Associated Press Declares Trump the Republican Nominee

Trump has won enough delegates to become the nominee for the Republican Party, according to a Thursday count by the Associated Press (AP).

Trump’s victory comes as little surprise given that he was only ten delegates away from the nomination after winning Tuesday’s primary contest in Washington state. According to AP, a count including unbound delegates was enough to put the presumptive nominee over the edge:

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The New York businessman sealed the majority by claiming a small number of the party’s unbound delegates who told the AP they would support him at the national convention in July. Among them was Oklahoma GOP chairwoman Pam Pollard.

“I think he has touched a part of our electorate that doesn’t like where our country is,” Pollard said. “I have no problem supporting Mr. Trump.”

It takes 1,237 delegates to win the Republican nomination. Trump has reached 1,239 and will easily pad his total in primary elections on June 7.

The billionaire’s win marks the end of a heated primary season. However, the departure of Trump’s rivals from the race doesn’t mean the end of their influence on the election. Former challengers Sen. Ted Cruz (R-TX) and Ohio Gov. John Kasich (R) both control their delegates, “potentially giving them influence over the direction of the party’s platform at the Republican convention July 18-21 in Cleveland,” according to the New York Times.

Abortion rights have been a key issue among GOP candidates battling to showcase their extremism on the subject throughout the race, and may play a large role at the convention. Trump told NBC’s Savannah Guthrie in April that he would “absolutely” look to change the party’s platform on abortion to include exceptions for cases of rape, incest, and life endangerment—much to the dismay of conservatives and anti-choice activists.

Cruz backers and other influential Republicans have reportedly moved to block “language that could be added to the platform or watered down in the existing party roadmap on abortion, transgender rights and same-sex marriage,” according to CNN.

Clinton Pitches Expansion of Voting Rights in Wisconsin Op-Ed

Clinton pushed her plans to expand voting rights in an op-ed published Wednesday in Wisconsin’s Journal Sentinel.

Clinton used Wisconsin’s voter ID law, which may have disenfranchised as many as 300,000 voters in April’s presidential primary, to discuss barriers to voting and the communities they impact. “When Walker’s Republican allies sat down to write this voter ID law, they knew full well it would unfairly target communities of color and prevent 300,000 mostly poor, elderly and student Wisconsinites from voting,” Clinton wrote. “In fact, that was the whole idea.”

The former secretary of state noted that laws suppressing voter turnout are popping up in states with GOP-majority legislatures. “From Alabama to South Carolina, to Texas, state legislatures are working hard to limit access to the voting booth,” Clinton wrote. “And since it’s clear we now have to be vigilant everywhere, as president, I would push for taking several additional actions at the national level.”

Over the course of the 2016 election season, 17 states will experience new voting restrictions—including voter ID laws and registration restrictionsfor the first time, according to the Brennan Center for Justice.

Clinton detailed the specifics of her platform to expand voting access. Her four-pronged approach included urging Congress to act on restoring the protections in the Voting Rights Act gutted by the Supreme Court in 2013; implementing reforms to the Presidential Commission on Election Administration pertaining to early and absentee voting; creating a “a new national standard of 20 days of early in-person voting everywhere”; and instituting universal voter registration for all Americans when they turn 18.

Clinton on the campaign trail has repeatedly addressed voting rights and Republican efforts to suppress votes. The Democratic presidential candidate outlined a similar plan to improve access to the polls in a June 2015 speech in Houston, Texas.

“We have a responsibility to say clearly and directly what’s really going on in our country,” Clinton said at the time, according to MSNBC. “What is happening is a sweeping effort to disempower and disenfranchise people of color, poor people, and young people from one end of our country to the other.”

What Else We’re Reading

Of Trump’s 70 paid campaign staff members, 52 of themor roughly 75 percentare men, reports Laura Basset for the Huffington Post. Democratic presidential candidate Bernie Sanders’ campaign also has some troubling gender demographics: none of the ten highest paid employees on staff are women.

Meanwhile, those over at New York Magazine’s The Cut wonder “who are the women who make up 25 percent of Trump’s campaign staff and are they okay?”

The Atlantic details Hillary Clinton’s “Medicare for More” health-care platform.

Would you be surprised if we told you that Trump’s new Christian policy adviser is a televangelist who believes he single-handedly stopped a tsunami and that AIDS is caused by “unnatural sex”?

The [Trump] campaign probably won’t choose “a woman or a member of a minority group” for Trump’s running mate, adviser Paul Manafort told the Huffington Post in an interview published Wednesday. “In fact, that would be viewed as pandering, I think,” Manafort said.

Vox’s Dara Lind explains the problem with Manafort’s admission: “The assumption: The only reason someone might pick a woman or person of color for a job would be because they’re a woman or person of color.”

Trump’s proposals for colleges and universities have at least one thing in common with Sen. Elizabeth Warren (D-MA), but “could lock poor students out of college,” Donald Heller, provost and vice president of academic affairs at the University of San Francisco, writes for the New Republic.

More bad news for the Republican presidential candidate: Many white women living in the suburbs of swing states whose votes are needed for Trump to win the general election just aren’t feeling him. Sad!

“There are more examples of shark attacks in the United States and exploding toilets than there was of voter fraud,” Rep. Rick Larsen (D-WA) said this week, referring to a conservative myth that leads to legislation perpetuating voter suppression. Larsen is a part of the newly-formed Voting Rights Caucus, which was created to “educate the public about their rights as voters, advance legislation that blocks current and future suppression tactics, and brainstorm creative ways to bring our election process into the 21st Century.”

An Ohio court ruled that former Republican presidential candidate Kasich’s efforts to cut early voting days are “unconstitutional and … accordingly unenforceable.” The state of Ohio has filed an appeal to the decision.

Janell Ross examines “the race-infused history” behind the disenfranchisement of those who have been convicted of felonies.

Analysis Law and Policy

State-Level Attacks on Sexual and Reproductive Health and Rights Continue, But There’s Also Some Good News

Rachel Benson Gold & Elizabeth Nash

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education.

State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).

This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)

Progress on Several Fronts 

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)

Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:

  • Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
  • Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
  • Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.

Ongoing Assault on Access to Sexual and Reproductive Health Services

Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.

  • Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
    • Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
    • Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
    • Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
  • Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
  • Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
    • Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)

Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.

  • Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
  • Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
  • Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.