News Abortion

Pro-Choice Legal Offensive Launched in Three States

Jessica Mason Pieklo

“We are going to fight back state by state and law by law until every person has the right to pursue the life they want, including the right to decide to end a pregnancy," Dr. Raegan McDonald-Mosley, chief medical officer of Planned Parenthood, said in a statement.

Reproductive rights advocates in three states filed lawsuits Wednesday challenging laws they say unnecessarily burden abortion rights and access.

The lawsuits represent a new wave of litigation attacking state-level abortion restrictions as advocates hope to build on this summer’s Supreme Court win in Whole Woman’s Health v. Hellerstedt, the case that declared unconstitutional a series of abortion restrictions in Texas.

Attorneys from the Center for Reproductive Rights, the American Civil Liberties Union, and Planned Parenthood challenged laws in Alaska, Missouri, and North Carolina, with advocates promising more lawsuits in other states.

“Individual rights and freedom go to the heart of who we are as a country, including the right to access abortion,” Dr. Raegan McDonald-Mosley, chief medical officer of Planned Parenthood, said in a statement. “We are going to fight back state by state and law by law until every person has the right to pursue the life they want, including the right to decide to end a pregnancy.”

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In Alaska, attorneys sued in state court to challenge restrictions passed over 40 years ago that effectively ban abortion care in outpatient health centers for women in the second trimester. These provisions, advocates claim, do nothing to advance health or safety, unduly burden abortion rights, and force patients to travel out of state for care.

Meanwhile, advocates in Missouri sued to block two provisions almost identical to the Texas restrictions the Supreme Court struck down as unconstitutional in Whole Woman’s Health. Those provisions include a requirement that all abortion clinics in Missouri meet the same architectural standards as stand-alone surgical centers, as well as several separate requirements that mandate doctors who provide abortions must have hospital admitting privileges or a written transfer agreement with a nearby hospital.

These measures severely restrict access to abortion in Missouri, which has just one licensed abortion facility in the entire state to serve nearly 1.2 million Missouri women of reproductive age, according to the complaint. Four additional health centers could offer abortion care services if the restrictions were not in place, according to the plaintiffs.

The result, advocates say, means patients from all over the state must travel up to 370 miles to obtain abortion care in St. Louis, where the only clinic is located.

Of the three lawsuits filed, it is the North Carolina case that could have the biggest effect on the national abortion rights landscape.

Advocates in North Carolina have challenged the state’s ban on abortion after the 20th week of pregnancy, arguing the measure blatantly violates constitutional law by banning abortion prior to viability.

Lawmakers amended North Carolina’s unconstitutional 20-week ban in 2015, so that an exception is only allowed when a patient is “facing a medical emergency.”

The statute defines that condition extremely narrowly as one that “so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function.”

That means under North Carolina statute there are no exception for cases where the health of the patient is at risk due to emotional or psychological harm from continuing the pregnancy, including the risk of suicide. The amendment went into effect in January of this year.

Eighteen states ban abortion at 20 weeks with laws similar to North Carolina’s. Even though those laws prohibit abortion pre-viability and should therefore be considered unconstitutional under Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health, the laws remain on the books. Only two such laws, in Arizona and Idaho, have been blocked by the courts.

The North Carolina law is similar to an Arizona measure that the Ninth Circuit Court of Appeals unequivocally rejected in 2013, in a detailed opinion that made clear any law that tries to ban abortion pre-viability is presumptively unconstitutional and can’t stand.

The Roberts Court refused to take the Arizona case, tacitly acknowledging that viability is a critical prong of abortion rights jurisprudence. The Roberts Court similarly refused to intervene in pre-viability challenges passed in Arkansas and North Dakota. Those measures were blocked by federal courts and the Eighth Circuit Court of Appeals. A win in North Carolina could reinforce that firewall against a direct overturning of Roe. A victory could also open up a path to challenge other 20-week bans in places like Wisconsin and even Texas.

In short, this is an important case to watch.

The legal challenges come at a time when the future of abortion rights seems particularly precarious, given conservatives’ broad electoral gains in the states along with a Trump administration that has promised to do all it can to cut off access to reproductive health care.

Republican legislators have promised a myriad of attacks on reproductive health care, including renewing efforts to defund Planned Parenthood, ending the Affordable Care Act’s birth control benefit, and pushing a host of abortion restrictions through Congress. One anticipated federal restriction is the so-called fetal-pain ban that would outlaw abortion care at 20 weeks, similar to the law being challenged in North Carolina.

The filing on Wednesday “is a major step in the fight to ensure all women can get safe and legal abortions in their own communities, when they need them,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We are a nation of laws, and the Center is prepared to use the full force of the law to ensure women’s fundamental rights are protected and respected. We are proud to stand with our partners in challenging these unconstitutional measures and vow to continue the fight for women’s health, equality, and dignity.”

Attorneys for the states sued have not yet responded to the complaints.

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