News Law and Policy

Federal Appeals Court Permanently Blocks Arizona 20-Week Abortion Ban

Jessica Mason Pieklo

A panel of judges sent a strong message to state legislatures that abortion rights matter.

On Tuesday a panel of judges of the U.S. Ninth Circuit Court of Appeals permanently struck down an Arizona law banning all abortions at 20 weeks, calling the extreme measure “unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with Gonzales.

The state law, which had been scheduled to take effect on August 2, 2012, would have banned all abortions at 20 weeks after a woman’s last menstrual period (LMP) without any exceptions for a pregnant woman’s life or health unless she is experiencing a dire and possibly life-threatening emergency. The law, HB 2036, would have banned abortion earlier in a pregnancy than similar laws recently enacted across the country and at a critical point when many women undergo prenatal testing to evaluate their own health and the status of their pregnancy.

The Center for Reproductive Rights (CRR) and the American Civil Liberties Union (ACLU) filed a lawsuit, Paul A. Isaacson, M.D. v. Tom Horne, Attorney General of Arizona, in July 2012 in the U.S. District Court of Arizona, on behalf of three physicians who perform abortions and serve women with high-risk pregnancies—arguing that the Arizona law violates the U.S. Constitution by banning pre-viability abortions. After a federal district court judge denied a request to temporarily block the law and issued a final ruling upholding the statute, CRR and ACLU appealed to the Ninth Circuit Court of Appeals, which immediately blocked the law from taking effect while it deliberated the appeal of the District Court’s decision.

The opinion that followed was a forceful reaffirmation of a woman’s right to control her pregnancy pre-viability. The 44-page order repudiates much of the reasoning used by U.S. District Judge James Teilborg in originally ruling the law constitutional, including his parsing of the difference between a “ban” and a “regulation” and his assertion that because some pre-viability abortions would theoretically remain available under the law that it did not violate Roe. “The challenged Arizona statute’s medical emergency exception does not transform the law from a prohibition on abortion into a regulation of abortion procedure,” the opinion states. “Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusions of the choice to terminate a pregnancy altogether.”

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Importantly, the Ninth Circuit rejected outright the argument that the federal courts are not bound to consider viability as the point at which to determine whether a state can pass a restriction that creates an undue burden on a woman’s right to choose. In other words, one of the goals of the Arizona ban was to test the strength of viability as a cut-off point in banning, or severely restricting, access to abortions. This is important as anti-abortion activists pursue increasingly restrictive laws on abortion access based on blurring science on issues like so-called fetal pain as is the case here.

But, in this ruling, the Ninth Circuit said clearly that pre-viability bans run contrary to precedent and are unconstitutional. “Roe identified fetal viability as the earliest point in the pregnancy when the state’s interest becomes sufficiently compelling to justify not just regulation of the abortion procedure, but proscription of abortion unless necessary to preserve the life or health of the mother,” the court wrote. “Since Roe, the Supreme Court and lower federal courts have repeated over and over again that viability remains the fulcrum of balance between a pregnant woman’s right to control her body and the state’s interest in preventing her from undergoing an abortion.”

On the issue of whether or not Arizona’s pre-viability ban would survive because of its narrow exception for the life and health of the pregnant woman, the court forcefully disagreed. “The presence of a medical exception does not make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception has no bearing on whether the prohibition is permissible in the first place. The twenty-week law is unconstitutional because it bans abortion at a pre-viability stage of pregnancy; no health exception, no matter how broad, could save it.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said the following in a statement: “Today’s decision is a huge victory in the fight to protect women’s fundamental reproductive rights, and it should send a clear message to anti-choice politicians that their attempts to deprive pregnant women of critical health care are clearly unconstitutional and will not hold up in court.”

Attorneys for the ACLU who were also involved in the legal challenged were similarly pleased with the ruling. “We’re glad the court has reaffirmed that states cannot place unlawful burdens on a woman’s right to access safe reproductive health care,” said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. “Politicians do not have the right to interfere in serious and personal decisions that should only be made by a woman with the help of her family and her doctor. The ban would have forced a physician caring for a woman with a high-risk pregnancy to wait until her condition poses an immediate threat of death or major medical damage before offering her the care she needs. The ban also contained no exceptions for a woman who learns her fetus will not survive after birth.”

“Lawmakers cannot impose their personal ideologies on the women of Arizona,” said Dan Pochoda, legal director with the ACLU of Arizona. “This law endangered women’s health and was knowingly passed by the Arizona legislature despite clearly violating established constitutional requirements.”

This is the second opinion from the Ninth Circuit to unequivocally support abortion rights. Last year the Ninth Circuit Court of Appeals ruled states can’t prosecute pregnant women for “self-abortion” in the cask of Jenni Lynn McCormack who purchased medication online to terminate her pregnancy.

The ruling is not binding nationally, but covers the states of Arizona, California, Nevada, Hawaii, Oregon, Washington, Idaho, and Montana. And since supporters of the measure, including Arizona Attorney General Tom Horne, have made it clear the law is designed specifically to prompt the Supreme Court to take up and reverse Roe v. Wade, there’s every reason to believe supporters will appeal the ruling. In the meantime, though, the decision represents a significant victory for women, doctors, and public health and a defeat for those legislating religious extremism under the pretense of “protecting” women.

News Abortion

Anti-Choice Leader to Remove Himself From Medical Board Case in Ohio

Michelle D. Anderson

In a letter to the State of Ohio Medical Board, representatives from nine groups shared comments made by Gonidakis and said he lacked the objectivity required to remain a member of the medical board. The letter’s undersigned said the board should take whatever steps necessary to force Gonidakis’ resignation if he failed to resign.

Anti-choice leader Mike Gonidakis said Monday that he would remove himself from deciding a complaint against a local abortion provider after several groups asked that he resign as president of the State of Ohio Medical Board.

The Associated Press first reported news of Gonidakis’ decision, which came after several pro-choice groups said he should step down from the medical board because he had a conflict of interest in the pending complaint.

The complaint, filed by Dayton Right to Life on August 3, alleged that three abortion providers working at Women’s Med Center in Dayton violated state law and forced an abortion on a patient that was incapable of withdrawing her consent due to a drug overdose.

Ohio Right to Life issued a news release the same day Dayton Right to Life filed its complaint, featuring a quotation from its executive director saying that local pro-choice advocates forfeit “whatever tinge of credibility” it had if it refused to condemn what allegedly happened at Women’s Med Center.

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Gonidakis, the president of Ohio Right to Life, had then forwarded a copy of the news release to ProgressOhio Executive Director Sandy Theis with a note saying, “Sandy…. Will you finally repudiate the industry for which you so proudly support? So much for ‘women’s health’. So sad.”

On Friday, ProgressOhio, along with eight other groupsDoctors for Health Care Solutions, Common Cause Ohio, the Ohio National Organization for Women, Innovation Ohio, the Ohio House Democratic Women’s Caucus, the National Council of Jewish Women, Democratic Voices of Ohio, and Ohio Voice—responded to Gonidakis’ public and private commentary by writing a letter to the medical board asking that he resign.

In the letter, representatives from those groups shared comments made by Gonidakis and said he lacked the objectivity required to remain a member of the medical board. The letter’s undersigned said the board should take whatever steps necessary to force Gonidakis’ resignation if he failed to resign.

Contacted for comment, the medical board did not respond by press time.

The Ohio Medical Board protects the public by licensing and regulating physicians and other health-care professionals in part by reviewing complaints such as the one filed by Dayton Right to Life.

The decision-making body includes three non-physician consumer members and nine physicians who serve five-year terms when fully staffed. Currently, 11 citizens serve on the board.

Gonidakis, appointed in 2012 by Ohio Gov. John Kasich, is a consumer member of the board and lacks medical training.

Theis told Rewire in a telephone interview that the letter’s undersigned did not include groups like NARAL Pro-Choice and Planned Parenthood in its effort to highlight the conflict with Gonidakis.

“We wanted it to be about ethics” and not about abortion politics, Theis explained to Rewire.

Theis said Gonidakis had publicly condemned three licensed doctors from Women’s Med Center without engaging the providers or hearing the facts about the alleged incident.

“He put his point out there on Main Street having only heard the view of Dayton Right to Life,” Theis said. “In court, a judge who does something like that would have been thrown off the bench.”

Arthur Lavin, co-chairman of Doctors for Health Care Solutions, told the Associated Press the medical board should be free from politics.

Theis said ProgressOhio also exercised its right to file a complaint with the Ohio Ethics Commission to have Gonidakis removed because Theis had first-hand knowledge of his ethical wrongdoing.

The 29-page complaint, obtained by Rewire, details Gonidakis’ association with anti-choice groups and includes a copy of the email he sent to Theis.

Common Cause Ohio was the only group that co-signed the letter that is decidedly not pro-choice. A policy analyst from the nonpartisan organization told the Columbus Dispatch that Common Cause was not for or against abortion, but had signed the letter because a clear conflict of interest exists on the state’s medical board.

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquiries from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

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