Attorneys for the State of North Dakota have appealed a federal court ruling that permanently blocked a state law that would have banned abortions as early as six weeks of pregnancy.
HB 1456 was one of anti-abortion measures passed by lawmakers last year and would have prohibited abortions after a fetal heartbeat was detected, which can be as early as six weeks into pregnancy. The law, considered to be among the most extreme in the nation, would have subjected any physician who knowingly violated the ban to felony charges punishable by up to five years in prison.
David Brown, a staff attorney at the Center for Reproductive Rights, which represents the state’s only abortion clinic in challenging the law, told Rewire that the appeal was to be expected. “The appeal is not a big surprise,” said Brown. “After the hearing, the attorneys for the state announced they’d appeal if the judge ruled against them, which he did.”
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“But it remains the case that no federal court has ever upheld a pre-viability ban, let alone one as extreme as this one,” he added.
Given the clear precedent that pre-viability abortion bans are not constitutional and that the decision to file an appeal is a discretionary one, Brown said it’s a question of how many resources the state is willing to use to defend the law. As reported by Rewire, from January 2011 to December 2013 the state spent nearly $230,000 in taxpayer money on attorneys’ fees defending anti-choice measures. Meanwhile, at the request of Stenehjem, the state set aside $400,000 in 2013 to defend anti-choice restrictions in court.
Stenehjem said in a statement that the ruling banning the law from taking effect was to be expected, but that the purpose of the law, and the appeal, was to try and force the federal courts to re-examine the constitutionality of pre-viability abortion bans. “While Judge Hovland’s ruling was not unexpected, and is understandable given controlling case law, the Legislature passed the law in hopes that a higher court would revisit the issue,” Stenehjem said. “The office of Attorney General was created for the purpose of representing the state, including defending legislative enactments in court, and that is what my duty requires of me. It seems prudent that an appellate court should have an opportunity to consider the issue rather than have one judge overturn the judgment of the Legislative Assembly.”
The U.S. Court of Appeals for the Eighth Circuit in St. Louis will hear the appeal, with oral arguments expected to take place sometime in the fall.
"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."
The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.
The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.
The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.
In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.
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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.
Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.
The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.
Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”
He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”
Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.
Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”
Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.
Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”
“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.
CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.
The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.
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.
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. Hellerstedtstruck 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.
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.
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:
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.
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.