Roundups Law and Policy

Legal Wrap: Beatriz and the Dangers of Abortion Bans

Jessica Mason Pieklo

One woman in El Salvador illustrates the dangers lurking in domestic bans and restrictions on abortion care.

Legal Wrap is a round-up of key legal and reproductive justice news.

The tragic story of Beatriz, the young Salvadorian woman whose life has hung in the balance while the Catholic Church fiddled with granting her permission to terminate a pregnancy that, if continued, would have kill her, is a lesson in what happens when religious ideology comes before the non-biased delivery of health care. Marge Berer forcefully argues that Beatriz’ treatment should be a call to action to strip Catholic hospitals of their right to provide maternity care.

Planned Parenthood Montana sued to block two laws designed to make it more difficult for minors to access abortion care in the state. The first law challenged in the lawsuit is the state’s new parental consent law. The law, passed this session, requires parental permission for anyone under age 18 before terminating a pregnancy. The lawsuit also challenges the state’s less stringent parental notification law, which requires that the parents of anyone under age 16 be notified prior to a pregnancy termination.

The recent decision by the U.S. Ninth Circuit Court of Appeals to block Arizona’s 20-week abortion ban strongly re-affirmed the right of a woman to choose abortion prior to fetal viability with minimal interference by the state. Here I ask if fetal viability is such a good legal standard for abortion rights activists after all.

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It’s not just Arizona’s 20-week abortion ban making its way through the federal court system. Last week the American Civil Liberties Union sued to block the state’s race- and sex-selection abortion ban, arguing the law is racially discriminatory and based on improper racial stereotypes about who seeks abortions.

It took them three tries, but the California Assembly passed a domestic workers’ bill of rights. Gov. Jerry Brown (D) has a history of vetoing such measures, but it’s unclear if he’ll veto this latest version or not.

The other defendants in the trial of Dr. Kermit Gosnell were sentenced, including a clinic worker and Gosnell’s wife.

Anti-choice activists in Oklahoma are hoping the Supreme Court will step in and overturn an Oklahoma state supreme court decision that said a state law banning “off-label” use of abortion-inducing drugs is unconstitutional. The Oklahoma Coalition for Reproductive Justice recently submitted a briefing to the Supreme Court to explain why the lower court’s decision was correct and why the Supreme Court should stay out of the dispute. The Roberts court is expected to decide sometime in June whether to take the Oklahoma case for review.

The Centers for Medicare and Medicaid Services, the federal agency that administers the Medicaid program, rejected Indiana’s appeal of an administrative ruling that bars the state from denying Planned Parenthood Medicaid funding because some Planned Parenthood centers offer abortion care. The agency decision is separate from another court case involving the same law. The Supreme Court just recently refused to review a lower court’s finding that the law was unconstitutional.

Just because the federal courts say defunding Planned Parenthood solely because of ties to abortion care is unconstitutional doesn’t mean the state of Arizona is going to try and stop doing it.

Attorneys for the state of Arkansas asked a federal judge to uphold the so-called informed consent part of the a new state law banning abortions at approximately 12 weeks, because the law, while unconstitutional, was passed to “protect” women. The attorneys want the court to uphold the part of the law that requires doctors to inform women seeking an abortion if a heartbeat is detected and the statistical likelihood of the child surviving based on its gestational age. The federal court has already blocked enforcement of the 12-week ban which had been set to take effect in August.

President Obama announced four new federal court nominees last week, and each continues the president’s goal of bringing diversity to the federal bench. As reported by the People for the American Way, 42 percent of President Obama’s confirmed judicial nominees have been women, compared with just 22 percent of those nominated by the second President Bush and 29 percent of those nominated by President Clinton. Likewise, 46 percent of his confirmed nominees have been people of color. This is a significant change from the previous administration, where 82 percent of federal judicial nominees were white. Also, President Obama has nominated more openly gay people to federal judgeships than all of his predecessors combined. Republicans must be taking notice because they have blocked more of the president’s judicial nominees than any other sitting president in this country’s history.

Finally, yet another federal appellate court heard arguments in the litany of lawsuits challenging the birth control benefit in Obamacare last week as an attorney representing Mennonite owners of a for-profit family furniture manufacturing company asked the Third Circuit Court of Appeals in Philadelphia to block the mandate because it violates their right to religious expression.

News Politics

Anti-Choice Democrats: ‘Open The Big Tent’ for Us

Christine Grimaldi & Ally Boguhn

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Democrats for Life of America gathered Wednesday in Philadelphia during the party’s convention to honor Louisiana Gov. John Bel Edwards (D) for his anti-choice viewpoints, and to strategize ways to incorporate their policies into the party.

The group attributed Democratic losses at the state and federal level to the party’s increasing embrace of pro-choice politics. The best way for Democrats to reclaim seats in state houses, governors’ offices, and the U.S. Congress, they charged, is to “open the big tent” to candidates who oppose legal abortion care.

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Democrats for Life of America members repeatedly attempted to distance themselves from Republicans, reiterating their support for policies such as Medicaid expansion and paid maternity leave, which they believe could convince people to carry their pregnancies to term.

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Their strategy, however, could have been lifted directly from conservatives’ anti-choice playbook.

The group relies, in part, on data from Marist, a group associated with anti-choice polling, to suggest that many in the party side with them on abortion rights. Executive Director Kristen Day could not explain to Rewire why the group supports a 20-week abortion ban, while Janet Robert, president of the group’s board of directors, trotted out scientifically false claims about fetal pain

Day told Rewire that she is working with pro-choice Democrats, including Sen. Kirsten Gillibrand and Rep. Rosa DeLauro, both from New York, on paid maternity leave. Day said she met with DeLauro the day before the group’s event.

Day identifies with Democrats despite a platform that for the first time embraces the repeal of restrictions for federal funding of abortion care. 

“Those are my people,” she said.

Day claimed to have been “kicked out of the pro-life movement” for supporting the Affordable Care Act. She said Democrats for Life of America is “not opposed to contraception,” though the group filed an amicus brief in U.S. Supreme Court cases on contraception. 

Democrats for Life of America says it has important allies in the U.S. House of Representatives and the U.S. Senate. Sens. Joe Donnelly (IN), Joe Manchin (WV), and Rep. Dan Lipinski (IL), along with former Rep. Bart Stupak (MI), serve on the group’s board of advisors, according to literature distributed at the convention.

Another alleged ally, Sen. Bob Casey (D-PA), came up during Edwards’ speech. Edwards said he had discussed the award, named for Casey’s father, former Pennsylvania Gov. Robert P. Casey, the defendant in the landmark Supreme Court decision, Planned Parenthood v. Casey, which opened up a flood of state-level abortions restrictions as long as those anti-choice policies did not represent an “undue burden.”

“Last night I happened to have the opportunity to speak to Sen. Bob Casey, and I told him … I was in Philadelphia, receiving this award today named after his father,” Edwards said.

The Louisiana governor added that though it may not seem it, there are many more anti-choice Democrats like the two of them who aren’t comfortable coming forward about their views.

“I’m telling you there are many more people out there like us than you might imagine,” Edwards said. “But sometimes it’s easier for those folks who feel like we do on these issues to remain silent because they’re not going to  be questioned, and they’re not going to be receiving any criticism.”

During his speech, Edwards touted the way he has put his views as an anti-choice Democrat into practice in his home state. “I am a proud Democrat, and I am also very proudly pro-life,” Edwards told the small gathering.

Citing his support for Medicaid expansion in Louisiana—which went into effect July 1—Edwards claimed he had run on an otherwise “progressive” platform except for when it came to abortion rights, adding that his policies demonstrate that “there is a difference between being anti-abortion and being pro-life.”

Edwards later made clear that he was disappointed with news that Emily’s List President Stephanie Schriock, whose organization works to elect pro-choice women to office, was being considered to fill the position of party chair in light of Rep. Debbie Wasserman Schultz’s resignation.

“It wouldn’t” help elect anti-choice politicians to office, said Edwards when asked about it by a reporter. “I don’t want to be overly critical, I don’t know the person, I just know that the signal that would send to the country—and to Democrats such as myself—would just be another step in the opposite direction of being a big tent party [on abortion].” 

Edwards made no secret of his anti-choice viewpoints during his run for governor in 2015. While on the campaign trail, he released a 30-second ad highlighting his wife’s decision not to terminate her pregnancy after a doctor told the couple their daughter would have spina bifida.

He received a 100 percent rating from anti-choice organization Louisiana Right to Life while running for governor, based off a scorecard asking him questions such as, “Do you support the reversal of Roe v. Wade?”

Though the Democratic Party platform and nominee have voiced the party’s support for abortion rights, Edwards has forged ahead with signing numerous pieces of anti-choice legislation into law, including a ban on the commonly used dilation and evacuation (D and E) procedure, and an extension of the state’s abortion care waiting period from 24 hours to 72 hours.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.