A Wisconsin lawmaker is pushing to change legislation known as the “cocaine mom” act, a “fetal protection” law, in light of a high-profile case in which a pregnant woman was provided fewer legal protections than her fetus.
The case that has drawn national attention to the law is that of Alicia Beltran, a pregnant Wisconsin woman who was detained without legal counsel while the fetus she was carrying was provided with legal representation. As Rewire reported in October, Beltran disclosed past drug addiction at a prenatal care visit. After her refusal to take anti-addiction medication, despite a clean drug test, she was taken in shackles before a county commissioner and given a court-ordered 78-day stay at a drug treatment facility.
Three other states have similar laws: Minnesota, Oklahoma, and South Dakota. A National Advocates for Pregnant Women study found that states have brought criminal charges against women in which their pregnancy was a factor in the charges 413 times. The study found that like in the case of Beltran, these women’s constitutional rights were also violated, with regards to their right to due process, right to legal counsel, and freedom of movement.
State Rep. Chris Taylor (D-Madison) told Rewire that she is at the beginning stages of drafting legislation that would change the statute. “I don’t think the law is constitutional,” said Taylor. “The law is very very vague, and there no requirement for any evidence of drug use.” Taylor also said it violates a woman’s rights to privacy and due process.
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Beyond the constitutional argument, Taylor said the law is simply bad public policy. “Incarcerating pregnant women does not lead to better health outcomes,” she said. “I thought it was misguided in 1998. We certainly know a lot more now about the medical impact it has now. It doesn’t help pregnant women.”
The political makeup of the Wisconsin legislature will make it difficult for Taylor to change the law. A Republican-controlled state legislature and governor’s office will make it unlikely that Taylor will find enough support for the effort. In fact, there has been a recent push by Wisconsin Republicans to pass “personhood” legislation. “In this legislature it’s going to be very very difficult to do something about this,” said Taylor.
The law is also facing a lawsuit challenging its constitutionality. Lynn Paltrow, executive director of National Advocates for Pregnant Women, told Rewire that the group is at the beginning stages of litigation, and is confident about the case. “The law on its face is unconstitutional for many many reasons,” said Paltrow, who cited examples of the law violating Beltran’s civil rights, including her right to due process and right to privacy.
Paltrow said that if the law is struck down by the court, it will not set a legal precedent for which other, similar laws could be challenged, but it would have strong persuasive value. She also said it could affect “personhood” measures, laws which give a fertilized egg or fetus the same constitutional rights as full and separate persons.
Proponents of “fetal protection” laws “think that these types of laws will protect pregnant women and fetuses from violence when in fact [they’re] doing the opposite,” said Paltrow. The American Congress of Obstetricians and Gynecologists released a statement saying these types of laws “are contrary to the welfare of the mother and fetus” and that “incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.”
"To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall," said Jessica Mason Pieklo, vice president for law and the courts at Rewire. "The good news is that the Supreme Court's decision in Whole Woman's Health provides advocates with a solid foundation to begin those next fights."
The U.S. Supreme Court struck down Monday two provisions in Texas’ anti-abortion omnibus law known as HB 2, and with that ruling the dominos began to fall. Similar anti-abortion laws in Wisconsin and Mississippi were blocked Tuesday by the Supreme Court, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.
However, significant obstacles remain to ensure access to reproductive health care throughout the country. A number of states have in place slightly different variations of the requirements struck down by the Court, which means it remains to be seen how lower courts may apply Monday’s ruling to restrictions that aren’t exactly like those included in Whole Woman’s Health v. Hellerstedt.
Monday’s decision is a significant victory for patients and providers, but it doesn’t guarantee that targeted regulation of abortion providers (TRAP laws) across the country will start to fall immediately, explained Jessica Mason Pieklo, vice president for law and the courts at Rewire.
“To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall,” Pieklo said. “The good news is that the Supreme Court’s decision in Whole Woman’s Health provides advocates with a solid foundation to begin those next fights.”
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Dozens of states in recent years have passed TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to clinics and physicians in other medical fields.
As Rewirepreviously reported, key players in the development of HB 2 were deeply connected to AUL and other conservative lobby groups.
The Supreme Court ruled in Whole Woman’s Health v. Hellerstedtthat two TRAP provisions under HB 2 placed “a substantial obstacle in the path of women seeking an abortion,” and constituted “an undue burden on abortion access.”
Specifically, the Court struck down the requirement that physicians who provide abortion care must have admitting privileges at a hospital within 30 miles of the facility where the physician will provide abortion services. The Court also struck down the requirement that facilities providing abortions meet ambulatory surgical center (ASC) requirements, which involve prohibitively expensive medically unnecessary building renovations.
There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.
These laws typically require physicians have admitting privileges at a hospital near the facility where they provide abortion care. Some of these laws require that the hospitalsprovide OB-GYN services, and some require the physician to be board certified in OB-GYN medicine.
Other laws require that the hospital be no more than 30 miles from the facility where the abortion is performed, or have varied in defining the geographic boundary.
The law that was struck down in Mississippi required the admitting privileges be obtained at a “local hospital.” And Utah’s current law requires the hospital be within a “travel time of 15 minutes or less,” while Florida’s recently passed law requires the hospital be within a “reasonable proximity.”
There are 24 states that have passed laws requiring facilities in which surgical abortion services are performed to meet ambulatory surgical center standards that go beyond what is needed to ensure patient safety, and another 17 states require clinics that may only provide medication abortion to meet these same standards, according to the Guttmacher Institute.
As Nick Bagley, an assistant professor at the University of Michigan School of Law, told Vox, similar laws that have been passed in other states may face legal challenges in the wake of Whole Woman’s Health, but the details of those challenges may vary. “The Supreme Court only applies to Texas,” Bagley said. “Other states will have slightly different laws with slightly different facts to argue over.”
Florida and Indiana TRAP Laws Set to Take Effect
This year Florida passed its own Texas-style anti-choice omnibus law, which takes effect Friday. However, there are some differences between the two laws, including differences in the types of regulations of physicians who provide abortion care.
Clinics that offer abortion services in Florida will be required to have a written patient transfer agreement, which includes the transfer of the patient’s medical records, with a hospital within “reasonable proximity” to the facility. Physicians also will be required to have admitting privileges at a hospital within “reasonable proximity” to their clinic.
The law also mandates annual inspections of all licensed abortion clinics, requires any medical facility in which abortions are performed to submit a monthly report, and prohibits state or local governments from entering into contracts with organizations that provide abortion services.
State Sen. Kelli Stargel (R-Lakeland), who voted for the bill, expressed concern after the senate vote that the bill’s language could become an issue in the courts. “Those clauses gave me concern that it would make it as though our intent was to close down all abortion clinics in the state,” Stargel told the Tampa Bay Times. “That was not the intent of this bill.”
After the Supreme Court’s ruling on Monday, Stargel reiterated that despite the bill’s similarities to the Texas law, it was not lawmakers intent to restrict access to abortion. “In Florida, we passed [the law] to safeguard women’s health, not to close abortion clinics,” Stargel said in a statement, reported the Florida Sun Sentinel.
Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told the Miami Herald that the language of the bill may be different, but that Florida lawmakers had the same intent as Texas lawmakers: to shutter abortion clinics.
“It’s definitely different language,” said Goodhue. “But the intent is the same.”
Planned Parenthood has filed a lawsuit challenging the law, however, the organization is not challenging the admitting privileges requirement.
Goodhue told the Florida Sun Sentinel that the organization will determine if there are grounds for other lawsuits in the future. “Right now, we’re seeking emergency relief on the other three provisions, but we’ll make sure that access to care is protected,” Goodhue said.
Gov Rick Scott (R), who signed the bill into law in March, said during a press conference Monday that his administration is reviewing the Supreme Court’s decision, reported the Miami Herald.
Lawmakers in Indiana have in recent years passed multiple laws to restrict access to abortion, including laws that have provisions mandating that physicians have admitting privileges and other reporting requirements.
Mike Fichter, president and CEO of Indiana Right to Life, said in a statement that the Supreme Court showed “utter disregard for women’s health and safety,” and defended a similar law passed state lawmakers this year.
“We will be reviewing the Supreme Court’s decision thoroughly to see how this legal precedent could affect Indiana’s laws on admitting privileges and abortion facility building standards,” Fichter said.
An omnibus abortion bill passed in 2011 contained multiple abortion restrictions, including a provision that a physician performing an abortion must have admitting privileges at a hospital located in the county where abortions are provided or a contiguous county.
The law also allowed for a physician to meet the requirement by entering into an agreement with a physician who has admitting privileges at a hospital in the county or contiguous county.
The law created a requirement that a written agreement between a physician performing an abortion and a physician who has written admitting privileges at a hospital in the county or contiguous county be renewed annually.
The law also requires the state department of health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.
Ali Slocum, spokesperson for Planned Parenthood of Indiana and Kentucky, told the Indianapolis Star that the organization does not have any immediate plans to challenge the law in court. “We are focused on what is currently in the pipeline. It is possible that the standard that the court set [Monday] could be used to challenge restrictions in other states,” Slocum said.
Efforts in State Legislatures to Repeal Laws
In some states lawmakers and advocacy groups may push to repeal similar laws following the Whole Woman’s Health decision.
Arizona lawmakers have passed several anti-choice laws in recent years and, like Texas and Florida lawmakers, justified those regulations as necessary to ensure the health and safety of women in the state.
Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona, said in a statementthat the Supreme Court made a “clear statement” that laws that restrict access to abortion care are unconstitutional.
“Arizona is a large state, with population spread across many rural areas. Laws that delay care, require travel over great distances and overnight stays certainly place real-life burdens on women seeking our care,” Liggett said.
Arizona Senate Minority Leader Katie Hobbs told the Arizona Republic that she will lead the effort in the legislature to repeal similar laws. “No woman or doctor should be punished for receiving or providing essential medical care,” Hobbs said. “These restrictions have never truly been about women’s health.”
However, repealing anti-choice laws in the GOP-dominated Arizona state legislature may prove difficult.
Republicans hold an 18-12 majority in the state senate and a 36-24 majority in the state house, and they have introduced dozens of anti-choice bills in the past several years. There have been seven laws to restrict access to abortion passed by Arizona lawmakers, including a law similar to Texas’ HB 2which requires abortion providers to have admitting privileges.
Those efforts have been spearhead by the Center for Arizona Policy, a conservative think tank that promotes anti-choice, anti-LGBTQ, and so-called religious freedom legislation.
Cathi Herrod, president of the Center for Arizona Policy, said in a statement that the Supreme Court’s decision eliminated “common-sense safety precautions” for women seeking abortion care. “To give the abortion industry a blanket exemption from laws applicable to every other medical facility is unconscionable,” Herrod said.
Josh Kredit, general counsel for the Center for Arizona Policy, told the Arizona Republic that the Supreme Court’s decision suggest that abortion providers should be treated differently that other health-care providers.
“They are arguing they should be exempt from garden-variety health and safety regulations,” Kredit said. “It was clear that Texas, when it passed these, was focusing on protecting women, just like many of our laws that we pass in Arizona.”
Dr. Thomas M. Gellhaus, president of the American College of Obstetricians and Gynecologists, said in a statement that the Court’s decision made it clear these laws do not improve the health and safety of patients seeking abortion. Said Gellhaus: “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”
“Of course, this is not the end of the battle when it comes to abortion access,” Gellhaus added. “In dozens of states, women are living under laws that impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more. None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship. We will continue to oppose these laws and to promote safe access to legal abortion for our patients.”
A public university and abortion clinic in New Mexico are the latest targets in a congressional investigation approved by Speaker Paul Ryan and condemned by a House Democrat as "a McCarthy-like witch hunt."
The New Mexico attorney general’s office received nearly 300 pages of documents from Rep. Marsha Blackburn (R-TN) Thursday allegedly incriminating the University of New Mexico (UNM) and Southwestern Women’s Options, a prominent abortion clinic, in fetal tissue trafficking. Blackburn’s goal: Provoke a state-level criminal investigation into the dubious allegations.
As Blackburn prepared her latest call for outside reinforcements in the U.S. House of Representatives investigation’s thus far unsuccessful search for a market in “baby body parts,” House Speaker Paul Ryan (R-WI) separately broke his silence on her tactics. Ryan said in a written letter he trusts Blackburn to conduct the so-called Select Investigative Panel on Infant Lives “in a way that will focus on the facts and also protect the privacy of those involved.”
The extensive documentation sent to New Mexico Attorney General Hector Balderas (D) appears to replace provider and researcher names in some areas and redact them in others, honoring Blackburn’s pledge to keep such information confidential. Earlier this month, Blackburn failed to redact at least two dozen researchers’ names and contact information in publicly available documents that she sent to the U.S. Department of Health and Human Services as part of a request for a federal abortion inquiry.
“We can confirm the Office of the Attorney General has received a public referral and this matter is under review,” attorney general spokesperson James Hallinan said in an emailed statement to Rewire. “All complaints received by the Office of the Attorney General are fully reviewed and appropriate action is taken.”
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Blackburn’s criminal referral appeared to cut other corners, copying state Rep. Steve Pearce, rather than Democratic Rep. Michelle Lujan Grisham, who represents Albuquerque—making UNM and Southwestern Women’s Options her constituents, not his.
Grisham’s spokesperson did not return requests for comment.
Blackburn alleged in the documents that the university and abortion clinic violated state and federal law. The university “aggressively engaged in expanding abortion” and in turn, received fetal tissue from the abortion provider, she said. Last year, Rewire reported that the UNM Health Sciences Center ended its decade-long relationship with Southwestern Women’s Options because the clinic didn’t perform an adequate volume of abortions to train residents and fellows, contrary to the victory anti-choice activists claimed at the time.
The university countered that Blackburn misinterpreted the New Mexico law, which does not preclude donating fetuses from elective abortions that occurred at the clinic. “Additionally, UNM has never paid for this tissue—it has been provided free to the University of New Mexico for medical research,” according to a statement from the UNM Health Sciences Center.
“For more than 40 years, Southwestern Women’s Options has provided high-quality care for New Mexico women,” said Southwestern Women’s Options spokesperson Heather Brewer in an email to Rewire. “We are committed to continuing to provide compassionate care to women in our community.”
Rep. Jan Schakowsky (D-IL) condemned the panel’s course of action.
“This so-called ‘criminal referral’ is further evidence that this investigation is nothing more than a wholly partisan attack on law-abiding doctors and researchers,” she told Rewire in an email.
Republican leadership, to the contrary, indicated that just cause exists for the overall investigation.
Ryan repeated several key Blackburn talking points to justify the panel’s continued work. He said documents at the panel’s April hearing on fetal tissue “pricing” indicated that some entities may have violated the federal ban on selling fetal tissue. Many of the documents, however, appear to have been dubiously sourced from the Center for Medical Progress (CMP), the anti-choice front group that released widely discredited videos alleging that Planned Parenthood profited from fetal tissue donations. Democrats on the select panel have warned that Blackburn is relying on additional information from the anti-choice Protest ABQ, which is run by former Operation Rescue operatives.
For instance, Ryan referenced the panel’s discovery of “a website that allowed a researcher to order any baby part imaginable at a given gestation period and proceed to check out.”
“Such a practice clearly threatens the human dignity,” he said.
Ryan also countered Schakowsky’s claim that the investigation is hurting the research community, despite what researchers, fearing for their safety, privacy, and job security, told Rewire in recent interviews.
Ryan said he lacked the power to disband the panel, though he would refuse to do so regardless of the circumstances. Among the reasons he won’t act: Under the informal “Hastert rule,” named for former Speaker Dennis Hastert (R-IL), currently imprisoned after pleading guilty to charges related to sexually abusing minors, a majority of the majority must agree to vote on a bill. Ryan’s pledge to abide by the Hastert rule helped him win over the ultra-conservative Freedom Caucus, which would certainly stymie any attempt to end the investigation, along with more moderate House Republicans who almost unilaterally oppose abortion as well.
Schakowsky criticized Ryan’s response.
“I am disappointed that the Speaker has chosen to parrot Republican talking points on the investigation instead of addressing our concerns in a meaningful way,” Schakowsky said in an email to Rewire. “While there is no evidence of wrongdoing by researchers or doctors, we have concrete proof of the chilling effect on life-saving research. This McCarthy-like witch hunt is putting lives and livelihoods at risk. The Speaker has the ability to shut down this dangerous Panel and he should do so at once.”