Analysis Law and Policy

The Future of Abortion Rights Could Be Decided in This Election

Jessica Mason Pieklo

There is quite literally everything on the line for reproductive rights advocates in Whole Woman's Health v. Hellerstedt.

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

In case it wasn’t clear before Wednesday’s oral arguments in Whole Woman’s Health v. Hellerstedt, presidential elections matter.

For nearly two hours, U.S. Supreme Court justices weighed two provisions of HB 2, the Texas anti-abortion omnibus bill that has been the focus of sustained legal challenges since 2013. At issue are the law’s requirements that abortion providers in the state have hospital admitting privileges within 30 miles of their clinic, and that abortion clinics meet the same architectural requirements as stand-alone ambulatory surgical centers (ASCs).

Leading into Wednesday’s arguments, both pro- and anti-choice advocates had their sights set on Justice Anthony Kennedy, the swing vote each needs in their corner. But if Justice Kennedy had his mind made up going into Wednesday’s arguments, he didn’t give many signals from the bench. When he did chime in, it was clear he was grappling to find a way out of this case for the Court: He specifically raised the possibility of remanding the case back to the lower courts, possibly for more fact-finding on the patient capacity of those abortion clinics that have managed to stay open since HB 2’s passage.

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This would be a smart move for a Court concerned with appearing too political or deciding such a high-profile case with an incomplete bench. It would also resolve nothing, just effectively kicking the case down the road for a bit. It’s too soon to say what would happen to the clinics in that scenario. Currently, the Fifth Circuit’s decision putting all the requirements into effect is on hold, thanks to a stay issued by the Roberts Court when it took up the case. The question is whether the Court would lift that stay, should it send Whole Woman’s Health back to the Fifth Circuit.

By contrast, Chief Justice John Roberts and Justice Samuel Alito’s thoughts on the case were quite clear. Stephanie Toti, senior counsel for the Center for Reproductive Rights (CRR), had barely finished her introduction to the justices when Roberts pounced on the idea that Whole Woman’s Health should be barred from challenging the admitting privileges portion of the law. He pointed out that the Supreme Court had refused to step in and block it in Planned Parenthood v. Abbottthe first challenge to the admitting privileges provision of HB 2 back in 2013.

After Justice Roberts finished suggesting the plaintiffs shouldn’t even be in Court on their admitting privileges claim in the first place, he then, perhaps accidentally, misstated the legal standard for judging abortion restrictions. Should the Court consider whether the restrictions placed an “undue burden” on abortion rights, as Planned Parenthood v. Casey and more than 20 years of reproductive rights jurisprudence dictates? Or is the question really whether or not these regulations posed a “substantial obstacle” to a woman’s right to choose?

Spoiler: It’s not one or the other, as Roberts suggested. It’s both.

Under the undue burden standard, courts must first decide whether a law has the purpose of placing a “substantial obstacle” before women seeking abortions. Then the courts move to the second step in the analysis, which asks whether restrictions have the effect of placing a substantial obstacle in the path of women seeking abortions. In other words, there is an “intent” part of the equation and a “consequence” part of the equation, and courts are required to engage both, not one or the other, as Roberts suggested. Since Casey, federal courts have gummed up this second step, and the Fifth Circuit in Hellerstedt just cruised right over it entirely. And it appears that’s what Roberts hoped to do as well.

Justice Samuel Alito, on the other hand, was just plain rude in his questioning of Toti. But I suppose that is to be expected from a conservative justice who, while on the bench, rolled his eyes when Justice Ruth Bader Ginsburg read from her dissent in Vance v. Ball State, the decision that made it more difficult for employees to pursue workplace harassment claims.

Alito seemed most concerned with whether or not abortion providers could actually prove they closed due to HB 2’s requirements or you know, some other reason not actually in the case record, like for having holes in the walls. Many of these ASC requirements seem innocuous, Alito mused. Hardly the kind of requirements that could “burden” anything. Though he didn’t say as much aloud, he may as well have just scoffed, “C’mon ladies, what’s all this fuss about?”

Justice Thomas said nothing.

Which brings me back to elections, their importance, and specifically the importance of this presidential election on this Supreme Court. Two of the day’s best performances came from President Obama’s nominees, Justice Sonia Sotomayor and Justice Elena Kagan, who, with their liberal colleagues Justices Ruth Bader Ginsburg and Stephen Breyer, shredded both the conservative justices’ questions and the State of Texas’ entire case.

Here is Justice Kagan on whether or not there was enough of a link between the law’s provisions and clinic closures, referencing the blizzard of court opinions blocking, then un-blocking, then re-blocking, the measures: “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it? It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”

Funny how that works, huh?

And here is Justice Sotomayor responding to Roberts’ word salad on the undue burden standard by reviewing the different hoops a patient in Texas must jump through, both to access a medication abortion and a surgical one. She then tied those hoops back to the purpose and effect of the HB 2 provisions, showing just how dubious Texas’ claims are that either requirement is about patient health:

JUSTICE SOTOMAYOR: Can I walk through the burden a moment? There’s two types of early abortion at play here. The medical abortion, that doesn’t involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?

MS. TOTI: Under Texas law, she must take them at the facility, butbut that is otherwise correct.

JUSTICE SOTOMAYOR: I’m sorry. What? She has to come back two separate days to take them?

MS. TOTI: That’s correct, yes.

Nothing like a well-placed “I’m sorry, what?” to draw attention to the absurdity of the restrictions at issue.

But Justice Sotomayor was not finished. To make it clear that the state’s purported safety reasoning is nothing more than legislative afterthought, she then brought up the fact that a dilation and curettage (D and C) is a procedure used for other purposes in addition to terminating a pregnancy:

JUSTICE SOTOMAYOR: What is the risk factor for a D and C related to abortion and a non-abortion D and C? D and Cs are performed in offices for lots of other conditions besides abortion. Is there any evidence in the record that shows that there is any medical difference in the two—in thein the procedures that would necessitate an abortion being in an ASC or not, or are abortions more risky than the regular D and C?

MS. TOTI: No, Your Honor. The evidence in the record shows that the procedures are virtually identical, particularly when D and C is performed to complete a spontaneous miscarriage. So when a woman miscarries and then follows up with her doctor, the doctor will typically perform a D and C. And that’s virtually identical to an abortion, but it’s not subject to thethe requirements of HB 2.

JUSTICE SOTOMAYOR: So your point, I’m taking, is that the two main health reasons show that this law was targeted at abortion only?

MS. TOTI: That’s absolutely correct. Yes, Your Honor.

It’s nice to hear a Supreme Court justice speak frankly about reproductive health issues without invoking “difficult decisions,” and instead focusing on the medical procedure at hand. With the Court currently evenly split ideologically between conservatives and liberals, this is also another example of what is at stake in the next Supreme Court appointment.

Compare Kagan and Sotomayor’s candor with Justice Kennedy’s invocation of the make-believe “abortion regret syndrome” in Gonzales v. Carhartor his use of the term “abortionist.” And then consider the Republican strategy of refusing to approve any new Supreme Court appointments writ large until after the presidential election becomes a little clearer. This next appointment may be the opportunity, should a Republican win a 2016 presidential election, to keep control over the highest court in the land for decades.

That also means this next appointment may be the first chance progressives have to wrestle the Court back to center from its rightward drift through the 1980s and today.

In that sense, it is fitting that the biggest abortion rights case the highest court has heard in years would end up before a likely deadlocked Court in the middle of a nasty election cycle. There is quite literally everything on the line for advocates in this case. Should the Court rule for Texas, the provisions will be fully enacted and the nation’s second-largest state will be left with only nine or ten clinics to serve the millions in need. The repercussions would ripple beyond Texas, affecting Louisiana, which would likely be left with only one clinic in the state, while Mississippi would have none left at all. And legislators everywhere else would feel emboldened to pass similarly restrictive laws to cut off abortion care.

So as much as progressives need Justice Kennedy’s vote, what we need even more is another progressive woman on the bench.

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.