Analysis Abortion

Arkansas Urges Roberts Court to Rethink ‘Roe’

Jessica Mason Pieklo

It's time to rethink the fundamental idea that states do not have the power to ban abortions prior to viability, the State of Arkansas argues.

States have been trying to regulate abortion rights out of existence since the Supreme Court first recognized them in Roe v. Wade. So far, fetal viability has been the one immovable legal fixture holding those attempts back. Not even the anti-choice majority on the Roberts Court has been willing to revisit the rule that up to fetal viability, the fundamental constitutional right to terminate a pregnancy belongs to the pregnant person. But all that could change this term.

Attorneys for the State of Arkansas filed a petition Tuesday with the Roberts Court urging it to step in and uphold an Arkansas law that bans abortions at 12 weeks’ gestation. Act 301, the “Arkansas Heartbeat Protection Act,” outlaws abortion when a fetal heartbeat has been detected—which can be as early as six weeks’ gestation—and at 12 weeks, with narrow exceptions for the life of the pregnant person, cases of rape or incest, and those that involve a “lethal fetal disorder.” The law, considered to be among the most radically restrictive in the nation, has been blocked by a federal judge since March 2014.

Attorneys for the State of Arkansas argued at both the trial court and appellate level that even though the law, if enacted, would outlaw nearly all abortions after 12 weeks’ gestation, Act 301 was not an unconstitutional pre-viability ban. Instead, because of the narrow exceptions within the act, attorneys said the ban was merely a regulation on the abortion procedure. A three-judge panel on the Eighth Circuit rejected that argument, but not because the judges disagreed with the Arkansas attorneys. Rather, the judges felt their hands were tied by Supreme Court precedents like Roe v. Wade and Planned Parenthood v. Casey, which prevent states from banning abortions prior to viability. They used the appellate opinion as a call on the Supreme Court to rethink its abortion rights jurisprudence.

With that opening, attorneys for the State of Arkansas jumped to action.

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“Just as Casey reevaluated the wisdom and constitutional necessity of the rigid trimester framework imposed by the Court in Roe,” the Arkansas Attorney General’s Office brief states, referring to the fact that Casey’s viability rule replaced Roe‘s structure for evaluating when abortion restrictions early in pregnancy are constitutional, “it is now time for the Court to reevaluate the rigid viability rule imposed in Casey.

That “rigid viability rule” of Casey is the portion of the decision in which the Court re-affirmed the essential holding of Roe v. Wade: that patients have the right to choose to have an abortion prior to viability without undue interference from the state. The fetal viability rule is a problematic one for reproductive rights advocates. Viability is not a fixed medical standard and can vary from pregnancy to pregnancy. As technology advances allow prematurely born infants to survive outside the womb earlier in pregnancy, fetal viability’s continued use as a fixed legal standard to judge the constitutionality of abortion restrictions means pregnant people will see the window of time to access legal abortion continue to shrink. On the other hand, it has proven to be the only bright-line abortion rights rule preventing the most draconian restrictions—like Arkansas Act 301—from becoming law.

Clearly, states have already created plenty of interference with the right to terminate a pregnancy prior to viability. Nearly every kind of restriction—clinic closure laws, procedure bans, regulations on medication abortions, the Hyde Amendment, the list goes on—interferes with that right. So what Arkansas is really talking about here is the idea that until the fetus has reached viability, the liberty of the pregnant person outweighs the power of the state to regulate that pregnancy to the point of making accessing abortion care an explicit impossibility.

Put yet another way: The State of Arkansas wants the Roberts Court to overturn Roe v. Wade while pretending it’s not overturning Roe v. Wade.

That’s a big ask of the Roberts Court, which is why attorneys for the State of Arkansas frame their request as an incremental one. This case, they argue, is not a challenge to the “foundational” principles of abortion rights jurisprudence. Nor are they attacking the fundamental right of reproductive privacy by asking for unfettered state power to regulate, and even ban, abortion at any stage of pregnancy. Rather, this is a case about “the impropriety of a judicially-imposed rule,” one they argue is “free from any serious constitutional mooring” and “sets in stone ‘viability’ as the point before which the State’s profound interests must give way to a woman’s desire to terminate her pregnancy.”

In fact, the attorneys argue in their brief, the State of Arkansas sees this as an opportunity for the Court to explain just why fetal viability has been a legal standard for the past four decades.

“The Court has never explained why viability is an important milestone from a pregnant woman’s perspective – at least with respect to her having ‘some freedom to terminate her pregnancy,’” the brief states.

I’m going to go out on a limb here and say one of the reasons why the Court has never explained the relationship between pregnancy and the pregnant person, or the importance of viability both medically and legally, is because it has never had a majority of its justices personally experience a pregnancy, wanted or not, carried to term or not.

But just like clinic closure laws are not really about advancing patient safety, the State of Arkansas is not really looking for the Court to explain the nature of pregnancy. Instead, it wants the Court to confirm the power of the government to regulate it.

“The Court has also never explained why a viability rule should override the State’s profound interest in restricting abortions prior to viability in order to protect the lives of unborn children,” the brief continues. “The Court has never sufficiently explained, for example, why a woman’s right to choose to terminate her pregnancy is paramount until a fetus reaches viability, despite the Court’s recognition that the State’s interest in protecting the life of the fetus begins at the outset of pregnancy, when the life of the fetus begins.”

If you ever questioned the idea that restricting legal abortion is about anything other than the power of the state to regulate women’s lives, I invite you to reread that paragraph again. At no point does the state recognize a pregnant person’s own agency, let alone their humanity.

There’s also the practical question of what legal standard would replace fetal viability if the Roberts Court bought Arkansas’ arguments and revisited it. As problematic as the viability standard may be, courts as institutions are just not going to yank one rule without replacing it with another. Here, attorneys for the State of Arkansas have an answer. And it is truly terrifying.

“A State should be allowed to advance its profound interests in protecting the life of the unborn child, protecting the health of the mother, and upholding the integrity of the medical profession by enforcing a restriction on abortion prior to viability especially where, as here, a woman is given a reasonable amount of time to terminate her pregnancy and the State provides a safe haven statute allowing a woman to abandon an unwanted child carried to term,” the brief states.

“By overruling the viability rule, the Court can protect the individual liberty interest declared in Roe and Casey while simultaneously affording states the latitude to protect their profound interests.”

That’s right. Only by overturning the cornerstone of women’s liberty interests can we protect them. And we will use a judicial standard of “reasonableness” by which to measure abortion restrictions. You thought the “undue burden” standard for what makes an abortion restriction unconstitutional was effectively meaningless? Imagine the decisions from the Fifth Circuit on a “reasonable” amount of time to terminate a pregnancy.

And when a woman misses her window of “reasonableness,” the attorneys are offering safe haven laws as a legitimate alternative—one of the most brazen and radical arguments in favor of Arkansas’ restriction. They’re claiming that through these laws, the state has completely taken on the burden of an unwanted pregnancy, rendering the need for legal abortion care irrelevant.

Safe haven laws provide a window of time—30 days, in Arkansas’ case—in which a person can surrender their newborn to the state without facing criminal prosecution. And because every state and the District of Columbia has some form of a safe haven statute, attorneys for the State of Arkansas argue the time has come to grant states the power to re-criminalize abortion. “By allowing any woman to abandon an unwanted child without consequence, the State of Arkansas completely assumes a pregnant woman’s burden of unwanted parenthood and child care,” the brief states.

“Accordingly, even if abortions were prohibited in Arkansas, no pregnant woman would be forced to endure the burdens of “additional offspring” and “a distressful life and future[,]” or mental and physical health “taxed by child care[,]” or general distress associated with an “unwanted child,” or “the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it,” the brief continues. “The safe haven statute completely eliminates the pregnant woman’s burden of parenthood.”

Let’s be very clear here about what the State of Arkansas is advancing here. In 2014 the state had over 7,500 children in its foster care system. Eleven percent of children in Arkansas live in extreme poverty. The National Women’s Law Center ranked Arkansas near the very bottom for positive health indicators for pregnant women, with about a fifth of them receiving no prenatal care in the first trimester. Almost 80 percent of Arkansas women live in a county with no abortion clinic, and the state is in the middle of trying to cut off Medicaid funding to the Planned Parenthood health-care facilities in the state. And remember the case of Rep. Justin Harris (R-West Fork), who “rehomed” two adopted daughters into another family where one of them was sexually abused? That scandal helped draw attention to the myriad of problems, from underfunding to racial disparities in placements and adoptions, plaguing the Arkansas Department of Human Services. Clearly, the state is not equipped to handle the “burden” of parenthood.

We will not know for months if the Roberts Court agrees to take the Arkansas case. And assuming the Court takes up Whole Woman’s Health v. Cole, the fight over clinic closure laws and the undue burden standard, it is not at all clear whether the Court will be interested in having multiple abortion-rights cases on its docket in one term, especially after mostly avoiding the subject since 2007. It’s entirely clear, however, that conservatives plan to keep trying to erode abortion rights all the way through the 2016 election, providing a steady drumbeat of anti-Planned Parenthood, anti-choice propaganda for the Court’s deliberation.

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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