Analysis Law and Policy

2017 Will Be Another Monster Year for Reproductive Rights Battles

Jessica Mason Pieklo & Imani Gandy

2016 brought in a ton of reproductive rights victories, plus one significant punt by the U.S. Supreme Court that could help Republicans in their efforts to overturn the Affordable Care Act. And 2017 is looking like another big year.

Around this time last year, Team Legal put together a list of cases and general goings-on that, in our opinion, promised to make 2016 an important year for reproductive rights. And boy, was it ever: 2016 brought in a ton of reproductive rights victories, plus one significant punt by the U.S. Supreme Court that could help Republicans in their efforts to overturn the Affordable Care Act. And 2017 is looking like another big year for reproductive rights and access. With a radically anti-choice incoming Trump administration, it’s shaping up to be a year of tough fights.

But first, let’s enjoy some good news.

Texas’ Targeted Regulation of Abortion Providers (TRAP) Provisions Went Down

2016 delivered one of the most significant Supreme Court cases for abortion rights since the 1990s with Planned Parenthood v. Casey. In June, the Court struck down a series of Texas provisions in Whole Woman’s Health v. Hellerstedt, ruling that if legislators were going to pass laws restricting abortion access and claim they are doing so to advance patient safety, those lawmakers better have data and evidence to back up those claims. Texas had enacted requirements that any doctor performing an abortion have admitting privileges at a nearby hospital and that any clinic providing abortions meet the same architectural standards as stand-alone surgical clinics. The state argued both provisions were necessary for patient health, despite not being able to produce any credible evidence this was true. The result of the restrictions, however, was to close clinics and devastate access in the state. Meanwhile, a number of other states like Wisconsin and Mississippi had enacted TRAP laws of their own. June’s ruling in Whole Woman’s Health meant such restrictions in those states fell, while litigation to challenge similar restrictions in places like Missouri pressed forward.

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Purvi Patel’s Verdict Overturned

In July, the Indiana Court of Appeals vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys had argued was a self-induced abortion. Patel’s prosecution and original conviction had garnered national attention: Attorneys for the State of Indiana were claiming to have the power to investigate and criminally charge patients if the prosecutor believed their failed pregnancy outcomes to be an attempted abortion. Thankfully, the Indiana Court of Appeals thought this was a terrible idea. Attorneys for the state did not appeal the verdict which means that unless the Indiana legislature goes back and changes the feticide law, for now pregnant people in Indiana cannot be charged for feticide as a result of a failed pregnancy.

California Showed Us How It’s Done 

The state leading the charge in affirmatively protecting reproductive health and access in 2016 was California. First, the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act went into effect. That law regulates centers “whose primary purpose is providing pregnancy-related services,” including fake clinics known as “crisis pregnancy centers,” and requires such facilities to post a short public notice about access to abortion and birth control. If the center is unlicensed it is required to disclose that fact. Conservatives challenged the law and lost.

California also passed a law that tightens continuing education standards for nurses, requiring coursework to be related to “scientific knowledge or technical skills required for the practice of nursing.” This legislation was a direct result of reporting done by Rewire, which uncovered that California regulators were doing little, if anything, to stop anti-choice groups from filling nursing coursework with propaganda rather than scientifically-based information.   

Then California took on insurance barriers to reproductive care. First, the California legislature enacted SB 999, a law that requires all health plans to cover up to 12 months of hormonal contraceptives, such as birth control pills, rings, and patches. This means patients can pick up their year’s supply at one time, striking a barrier to consistent contraceptive use. California also passed AB 1954, a law that allows patients to see an OB-GYN without a referral from a primary care provider, removing another administrative hurdle that can keep patients from accessing reproductive health care.

And Now 2017

At the beginning of 2016, there was plenty to be uncertain about. The Whole Woman’s Health victory wasn’t a given, nor was it at all clear that Purvi Patel’s verdict would be vacated. The same holds true for 2017. We’ve got big fights over reproductive rights and access looming, but even under a Trump Administration, we can’t make the assumption all hope is lost. We just have to fight harder.

The Affordable Care Act, Take Two

A central issue in the 2016 presidential campaign was, for Republicans, the repeal of the Affordable Care Act (ACA). Congressional Republicans have been campaigning on repealing the health insurance reform law since its enactment, and President-elect Trump hopped onboard too. 2017 might be the year it finally happens.

Nobody knows exactly how Congress would repeal the ACA, but the effect of a full repeal is quite clear. For starters, the birth control benefit portion of the law would go away, returning to the days when insurance companies were allowed to discriminate on the basis of gender by doing things like not covering birth control as a preventive service. It also means that conservatives will have forced taxpayers to spend hundreds of thousands of dollars defending dozens of lawsuits challenging the benefit on religious grounds. Thanks to the Supreme Court’s punt in Zubik v. Burwell, the Obama administration will have also gone through multiple rounds of agency rule making to try and accommodate the religious objections to the birth control benefit in a law conservatives may ultimately scrap.

Should Republicans succeed in repealing the ACA, gone too is Section 1557, the portion of the law that prohibits any entity receiving federal health-care dollars from discriminating in services on the basis of sex, including gender identity. The provision is a civil rights milestone and has been the basis of a growing number of lawsuits challenging allegedly unethical medical care transgender patients have received at a number of hospitals. The provision also guarantees nondiscrimination in insurance coverage and—should it be allowed to take full force and effect as it’s set to in January 2017 and not end up repealed—would help move health-care policy in a more just and equitable direction.

Religious Refusals and Catholic Care

Another reason Section 1557 has the potential to be such a power force in guaranteeing equality in health care is that it applies to all entities, including religiously affiliated health-care providers—and that includes Catholic hospitals. Reproductive rights advocates have had to sue a number of times after Catholic hospitals turned patients away mid-miscarriage, refused to perform a tubal ligation, or didn’t remove an IUD that had become dislodged. All of these refusals are arguably acts of medical malpractice. All have been defended by the hospitals on the grounds that they were adhering to Catholic directives on not prescribing contraceptives, encouraging their use, or performing abortions or sterilizations. So far, at least one federal appeals court is willing to let Catholic hospitals get away with it as well. With as many as one in six hospital beds in Catholic facilities, the question of whether religion or science should dictate medical care will be an increasingly controversial one in 2017.

Abortion Restrictions Focusing on “Advancing Fetal Life”

The Supreme Court’s decision in Whole Woman’s Health wasn’t just an important affirmation of the right to an abortion. It made it clear that anti-choice restrictions purporting to advance patient safety must have some evidence to do so if they are to be constitutional. That decision, however, didn’t address a separate part of Casey, and that is the part dealing with abortion restrictions designed to advance the state’s interest in advancing fetal life. Defeated in Whole Woman’s Health, anti-choice lawmakers have doubled down on these so-called “fetal dignity” measures—advancing bills mandating burial of fetal remains, banning abortion as early as six weeks, implementing 20-week abortion bans, and forbidding one of the most common forms of second-trimester abortions. We can expect to see a slurry of these bills, and the corresponding litigation filed to try and block them.

It’s Not All Bad News!

Trust us, we know it is not easy to be optimistic looking ahead into Trump’s United States, but already there are signs that not all hope is lost. The amazing folks from Whole Woman’s Health in Texas are at it again, this time filing a lawsuit to successfully block that state’s cruel fetal remains burial law. And advocates have also gone on the offensive in states like Missouri and North Carolina to challenge unconstitutional abortion restrictions there, including a challenge to North Carolina’s 20-week abortion ban that could help spawn challenges of similar laws in other states. The Oklahoma Supreme Court just tossed TRAP restrictions similar to those the Roberts Court ruled unconstitutional in Whole Woman’s Health.

In short, the fight’s not over yet. And there’s also a lot of evidence that despite the election, we’re winning key battles.

That said, 2017 is going to be a long year. Presuming Sen. Jeff Sessions (R-AL) is confirmed as attorney general, the future of FACE Act enforcement is in grave danger, which means abortion providers and patients are as well. And it looks like the Republican strategy of obstructing a Supreme Court nominee may have paid off, with Trump poised to nominate his own anti-choice replacement for the late Justice Antonin Scalia’s vacant seat. Congressional Republicans are already calling on the U.S. Department of Justice to criminally investigate Planned Parenthood for allegedly violating federal law relating to fetal tissue procurement despite the fact that investigation after investigation has showed no evidence of wrongdoing by the reproductive health-care provider. We are also guaranteed to see a host of anti-choice measures from Congress.

It’s a lot to fight, but thanks to the wins from 2016, reproductive rights advocates should feel confident they’re up to the task.

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