News Abortion

Expensive ‘Medical Expert’ Testimony, Referendum Petitions: Coming Up in North Dakota?

Robin Marty

A look at the past shows that whatever avenue is taken, the fight for abortion rights in North Dakota will be long and expensive.

A look at North Dakota’s past shows that whatever avenue is taken in the fight for and against unconstitutional abortion bans in the state, that fight will be long and expensive.

Recently, a local judge ruled to permanently block an unconstitutional abortion ban in North Dakota. Unfortunately, it was a ban from 2011. As Jessica Mason Pieklo reported last week, a bill that restricted how practitioners could offer medication abortion in the state was ruled unconstitutional and permanently blocked from becoming law. The bill has been blocked and litigated ever since it was signed into law, and the loss will now leave the state on the hook to pay all legal expenses. It’s an experience that should make a state gun shy about heading straight back into defending unconstitutional laws, but anti-choice legislators in North Dakota remain undaunted.

There are a number of different ways that the state may end up back in court. Just this session the state passed a ban on abortions after 20 weeks’ gestation, after a fetal heartbeat can be detected, on abortions procured due to a genetic anomaly, and even restrictions meant to close the only clinic in the state by requiring admitting privileges that practitioners say are nearly impossible to obtain. It’s unclear yet whether each law will get a separate lawsuit, if they will be bundled, or if a “referendum” process could block them before litigation. All that is clear is that any way this goes, it will be expensive.

State Attorney General Wayne Stenehjem is already asking for $400,000 in funding to defend the state laws once they go to court, funding the AG sees as necessary despite bill sponsors claiming that the legal expenses would be minimal; anti-choice legal groups were offering to defend the bans free of cost. Stenehjem admits he has no idea how much the state’s defense costs could run outside that assistance, and made his request based on similar battles in other states like Idaho and Arkansas.

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Maybe that was enough money in those states, but neither Idaho nor Arkansas was trying to defend four unconstitutional measures at the same time. Much of the money would be used to pay for “expert witnesses.” For instance, the state just paid $21,000 for Dr. Donna Harrison, the president the American Association of Pro-Life Obstetricians and Gynecologists, to testify in the failed medication abortion trial. Because the state lost its case, those expenses will not be reimbursed as they would have if the judge had ruled it its favor. “You have to have some expensive medical expert testimony, and that can be as expensive as any of the lawyers’ fees,” Stenehjem explained to Bloomberg News, trying to justify the $400,000 price tag.

“Heartbeat” ban sponsor Rep. Bette Grande (R-Fargo) says the expenses are worth it. “What is the price of life?” Grande said to the Associated Press. “I guess every person has to ask that of themselves.”

Grande and her compatriots may be questioning the “price of life,” but many citizens of North Dakota are questioning the waste of taxpayer dollars. Helped in part by the American Civil Liberties Union of North Dakota, ban opponents are taking to Facebook and Twitter to explain what they would rather do with the nearly half a million dollars that the AG is requesting. Requests range from student loan forgiveness and tuition reimbursement to childcare expenses and support for individuals with special needs. One respondent even implored, “Fix your roads!

The backlash from the public is spilling not just onto social media, but into the general population. Citizens are desperately seeking a way to more actively show their disagreement with the legislators who passed the bills. It is to that group that the activists (both pro- and anti-choice) who are pushing a referendum on the bills is hoping to appeal. The North Dakota Secretary of State has given permission for activist and legal abortion opponent Gary Hangsleben to begin collecting signatures to put the laws up for a popular vote, but it’s an avenue that few besides Hangsleben himself is interested in supporting. Hangsleben appears to recognize that his referendum isn’t a popular action with either side. “I’m sure (the petitions) will be scoured by people on both sides trying to find something to get them thrown out,” he told the Forum News Service.

For abortion opponents, a referendum could undo the work that they put into ensuring that the bills make it to court and potentially create an environment to reevaluate Roe v. Wade. For abortion rights supporters, a referendum could create the impression that it’s popular support—not the constitutionality of a law—that matters when it comes to a person’s civil rights. If abortion is legal, it is legal because it is a guaranteed right, not because a majority of people in a given location at a given time agree with it.

Without the requisite number of signatures for the referendum, the bans will go into effect August 1, unless a challenge comes first. With a court challenge, many if not all of the bills will never go into effect at all. The most likely scenario would be a challenge to the “heartbeat” ban and the TRAP bill, both of which would in essence ban abortion in the state, while the fetal anomaly and “pain” bans would be allowed to go into effect unchallenged since there are seldom abortions performed late enough in the state to fall into either category. With only two laws to be challenged, the state may have more of a chance of not blowing its $400,000 budget, but that doesn’t mean there won’t still be a lot of lawmakers justifying the expense to their constituents in the next election cycle.

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 Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

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