Black and white photograph of the front of the Supreme Court. Pro-abortion protestors stand holding signs, one of which reads "I stand with Whole Woman's Health"

Challenging the Contours of the “Undue Burden” Standard in June Medical Services v. Gee: A Slippery Slope?

By Beatrice Brown

On October 4, the Supreme Court announced that it would hear June Medical Services v. Gee, in which a 2014 Louisiana law that requires abortion providers to have admitting privileges at a nearby hospital will be examined. The case is nearly identical to Whole Woman’s Health v. Hellerstedt, in which the Supreme Court held that a Texas law with a similar requirement for admitting privileges was unconstitutional according to the “undue burden” standard asserted in the landmark 1992 case Planned Parenthood v. Casey. According to the 5-3 ruling, such requirements for admitting privileges posed an undue burden on a woman’s constitutional right to abortion without also providing a significant health benefit to the woman.

As noted by many experts, the two cases are remarkably similar, with the key difference being the composition of the Supreme Court. In 2016, Justice Anthony Kennedy joined the four liberal judges in the majority opinion, whereas now, Justice Brett Kavanaugh will likely join the four other conservative justices. The uncertain factor, however, is that in February, Chief Justice John Roberts voted with the majority opinion to delay the Louisiana law from going into effect in light of ongoing litigation, despite voting against the majority in Whole Woman’s Health v. Hellerstedt about the constitutionality of this similar Texas law. As such, it is unclear if the Court will hold that the Louisiana law is constitutional – given that Justice Kavanaugh will likely vote for its constitutionality, the direction of the ruling hinges on whether Justice Roberts votes as he did in Whole Woman’s Health v. Hellerstedt or as he did in February. Read More

Female gynecologist talking to female patient while holding a tablet

How to understand the Mexican Supreme Court Decision Regarding Abortion Based on Health Risks

Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required. 

By Adriana Ortega Ortiz

In Mexico, abortion is a state-law matter. It is considered a crime in most of the Mexican states except for Mexico City and Oaxaca where abortion is permitted within the first trimester of the pregnancy.

In the rest of the states abortion is allowed under limited legal indications: rape, health risks, danger of death, fetal impairment, and distressing economic situations. The legal indications are similar but not identical in the Mexican territory. The only legal indication for abortion that applies in every state is rape.

In this context, what makes the recent abortion ruling of the Mexican Supreme Court important?

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Statue of Justitia, the Roman goddess of Justice, placed in front of a large open book on which a gavel has been placed.

Amparo en Revisión 1388/2015 and the “Rights” Discourse in Mexico

Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required. 

By Patricia del Arenal Urueta

Since June of 2011, the Mexican Constitution includes a variety of clauses that would undoubtedly classify as “progressive.” Article 1 incorporates all human rights protected by international treaties into the Constitution itself; and this means that every authority (including, of course, judges) should interpret the law in order to reach the most comprehensive protection of human rights. It is a beautiful and promising text. It follows a global tendency premised on the notion that international human rights are the standard by which it is possible to scrutinize any act (or decision) claiming political and legal authority over individuals.

However, given the alarming data showing an important increase in human rights violations over the past few years in Mexico, there are good reasons to feel uneasy about the efficacy of such an ambitious amendment. There is a striking disparity between its idealistic pretensions and the appalling reality. This phenomenon has prompted questions harder to address than those concerns typically attributed to a fragile Rule of Law. In fact, some scholars and other institutions have wondered whether such constitutional discourse serves as a sham. The idea behind this argument is that a text so grand can mostly serve to mask the government’s intention (deliberate or not) to actually do the opposite; this is, to advance policy uncommitted ─or even contrary─ to human rights, and to distract the international community from facts that it would probably disapprove.

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View of the outside of the Mexican Supreme Court of Justice

The Fundamental Right to Health and Judicial Review in México

Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required. 

By David García Sarubbi

The Mexican constitution is one that contains not only a list of civil rights, but also a declaration of social rights, and both are considered rules of decisions, perfectly justiciable under any court of law. This is important because this year the Mexican Supreme Court ruled in favor of a woman who had been denied an abortion alleged to be necessary to preserve her health in a public hospital. The Court sided with this claim after concluding abortion is covered by Constitution as interpreted by the Court.

So being the ground of such a ruling, it seems important to take into consideration some things about the doctrine of justiciability of the right to health in Mexico. In order to protect it, there are different systems funded with public money to provide services to the community. Nonetheless, the most important systems of health care are those funded with additional contributions from workers, which account for other rights also provided by these institutions, such as pensions for retirees as well as unemployment, accident, or life insurance.

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Photograph of a button pinned to a shirt. The button reads "Fuera el aborto de codigo penal."

Sexual and Reproductive Health and Rights: A Legal and Political Flashpoint in Today’s World

Friday, October 4, the Petrie-Flom Center will host “Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” from 8:30 AM to 12:30 PM. This event is free and open to the public, but registration is required. 

By Alicia Ely Yamin

Abortion Battles in Mexico and Beyond: The Role of Law and the Courts,” hosted by the Petrie-Flom Center on Friday, October 4th, provides a critical opportunity to reflect upon the progress that has been made with respect to recognizing sexual and reproductive health and rights (SRHR) as legally enforceable rights, and the role courts have played in Mexico and elsewhere.  The event could not be more timely, as the battle lines were evident at the UN General Assembly’s Universal Health Coverage (UHC) Summit and in negotiations over the “Political Declaration of the High-Level Meeting on Universal Health Coverage.” A group of countries led by the United States wanted to remove language of SRHR from the declaration and, in turn, the priorities for UHC. That effort was ultimately defeated but the debates showed the degree of contestation that these norms face in development paradigms, as well as international and national law.

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Photograph of protestor holding a hot pink sign that reads "I Stand with Planned Parenthood"

Trump’s Title X Gag Rule: An Ethical Conundrum for Planned Parenthood

By Beatrice Brown

On August 19, Planned Parenthood announced that they would be leaving the Title X family planning program due to the Trump Administration’s new prohibition that restricts those who receive Title X funds from providing or referring patients for abortion. This restriction on Title X funding has unsurprisingly been met with a lot of criticism, namely, that it interferes with a woman’s constitutional right to abortion. This can be seen as a partial victory for those who have been attempting to defund Planned Parenthood for years, an organization that, despite others’ characterizations, is fundamentally committed to providing all women access to quality health care and is not solely an abortion provider.

As a result of this gag rule, Planned Parenthood has faced a huge ethical dilemma: Do they continue to accept Title X funding to assist low-income women with everyday health care, such as yearly routine wellness visits, or do they reject this funding and both 1) take a stand on a woman’s constitutional right to abortion and 2) continue to provide a service (or retain the right to refer patients to a service) that is crucial to women’s health? Planned Parenthood has chosen the latter, and I think that Planned Parenthood’s difficult choice is justified.

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Illustration of cell phones and prescription pill bottles

Access as Equity: Efforts to Use Telemedicine to Expand Abortion Access

By Oliver Kim

I’ve written here before about areas where technology could play a role in providing access to complicated, controversial healthcare services. Earlier this year, I presented a forthcoming paper co-authored with a colleague on how technology can be used to provide greater equity in women’s health and how the law is being used to encourage such advances or block them. Given the political battles over women’s health, it should be no surprise that technology’s role in abortion access is under increasing scrutiny from lawmakers.

A medication abortion involves a two-step regimen: the woman first takes mifepristone, generally in a clinical setting, and 24 to 48 hours later, she takes misoprostol, generally in the privacy of her home. Recent research, though, suggests that women may not need to take mifepristone in a clinical setting: the World Health Organization revised its guidelines on whether the medications require “close medical supervision,” and a recent op-ed in the New England Journal of Medicine called on the Food and Drug Administration to revise its restrictions on mifepristone.

Given these findings, abortion providers have recognized that telemedicine could be utilized to expand access into areas where abortion services are limited due to geography, legal restrictions, or both. Since 2008, Planned Parenthood in Iowa has used telemedicine to overcome both provider shortages and geographic challenges: a physician can use video conferencing services to appear virtually at health centers across the state, reviewing a patient’s ultrasound and medical history remotely and providing counseling over a secure, private system. The majority of the medical literature finds that using telemedicine to provide medication abortions is just as safe and effective as if a woman met with a clinician in person.

As we discuss in our paper, when technology expands access to care that is politically controversial, policymakers may use the law to restrict such technological advances. In response to this use of telemedicine, states hostile to abortion began passing bans. When Iowa’s medical board attempted to restrict such a use of telemedicine, the Iowa Supreme Court struck down the board’s regulation, holding that it would be an undue burden on a woman’s right to an abortion. Some hailed the Iowa decision as groundbreaking and hopefully influential on other state supreme courts. (Later that same year, the U.S. Supreme Court in Whole Woman’s Health would strike down two Texas statutory restrictions on abortion providers as undue burdens on a woman’s right to an abortion.)

What I find interesting—and what came out after we submitted our paper—is how telemedicine and abortion are being treated in neighboring Kansas and how it reflects the larger legal debate over these issues. In 2011, Kansas first attempted to ban telemedicine abortions by requiring a physician to be physically present when administering mifepristone, thus eliminating the value of telemedicine. Subsequently, the Kansas state legislature modified the ban in 2015 by clarifying that a physician would not need to be physically present in a medical emergency; in 2018, the legislature passed explicit language in the Kansas Telemedicine Act that nothing in this new telemedicine legislation authorized the use of telemedicine for abortion. However, a Kansas court enjoined the Kansas attorney general, the only defendant in this line of cases, from enforcing this provision or the in-person requirements under the court’s prior 2011 decision.

Even more remarkable, in the same state that elected Sam Brownback governor twice, the Kansas Supreme Court recently held in Hodes & Nauser v. Schmidt that the Kansas constitution provided a fundamental right to an abortion.

Thus, it may seem surprising that in a subsequent decision, a district court refused to grant a preliminary injunction for Trust Women, a Wichita-based abortion provider, to prohibit the state from enforcing the telemedicine abortion restrictions. Part of this new case turns on standing as well as recognizing that the prior line of telemedicine-abortion cases only enjoined the state attorney general and was silent on whether the state health department or county attorneys were similarly enjoined from enforcing the telemedicine-abortion bans.

Further, the court also turned part of its decision on whether Trust Women would suffer an irreparable injury: the court found that there was insufficient evidence of an injury because Trust Women still required patients to be present physically at its Wichita clinic in its telemedicine pilot, and Trust Women had taken no preliminary steps to open clinics in remote rural parts of the state. Indeed, the court decried the prior telemedicine-abortion rulings as “a growing procedural backwater” and suggested that the court needs to be able “to resolve the underlying merits of the telemedicine abortion issue,” necessitating that “the parties… present additional evidence and more probing legal analysis than has occurred at this early stage.”

While the district court has significant discretion in considering a request for a preliminary injunction, it does feel troubling that the court suggests that Trust Women should have invested time and resources into a telemedicine strategy that might be illegal before seeking relief. In light of the bans and the legislature’s hostility, it seems unlikely that Trust Women could have raised the funds necessary to create a telemedicine infrastructure and build clinics in remote rural areas. After all, although the Kansas Supreme Court’s decision was not on the telemedicine restrictions, it seems unlikely that they would survive a strict scrutiny review under Hodes since the state will bear the burden of justifying the law. Moreover, it’s also likely that the restrictions might not survive review under Whole Woman’s Health given the weight of medical evidence that suggests singling out abortion from all other services provided by telemedicine, is suspect.

This is also playing out on the national stage as the Fifth Circuit in June Medical v. Gee seemingly sent a direct challenge to Whole Woman’s Health where the Fifth Circuit upheld Louisiana abortion restrictions that were basically identical to the Texas restrictions that were struck down. How June Medical is ultimately resolved will have ramifications for telemedicine in this particular context.

While medical evidence demonstrates that telemedicine is a safe means of providing medication abortion (as well as providing other benefits for women such as privacy), there are of course those that dispute this notion. One could see a conservative court finding that a telemedicine ban is not an undue burden: under the Trust Women preliminary injunction ruling, women in rural areas are no worse off than they were before since they never had access to abortion via telemedicine to begin with. Further, if waiting periods and similar barriers are upheld post-Whole Woman’s Health, this could put rural access even further at risk. In other words, a woman still has access to abortion, just not via telemedicine. Of course many such arguments could be applied to any telemedicine application, so the question turns back again: Why place restrictions just on abortion services?

In so many areas, though, telemedicine has been hailed as a way to increase access for all patients. The issues arise in the same areas where there have always been strong opinions, but the evidence and the trend lines are overwhelmingly in favor of expanded telemedicine access. The law should follow.

human embryos under a microscope

A Lawsuit Involving an Alabama Man and a Fetus Is Particularly Threatening to Reproductive Rights

Last week Alabama passed the most restrictive abortion law in the country, criminalizing abortion of “any woman known to be pregnant,” with very limited exceptions that do not include rape or incest. But a recent case in Alabama presents an even more threatening challenge to reproductive rights.

In a new paper published in JAMA, the Journal of the American Medical Association, authors Dov FoxEli Y. Adashi, and I. Glenn Cohen, discuss a recent Alabama state court case involving a man suing an abortion clinic and the manufacturer of a pill that enabled his then-girlfriend to terminate her pregnancy at 6 weeks.

In a troubling decision, the court permitted the fetus be a co-plaintiff alongside the man in a “wrongful death” lawsuit. Read More

Pro-choice and pro-life protesters face off in front of the Supreme Court

“Fetal Heartbeat” Bans are Gaining Momentum, but Abortion Restrictions Come in Many Forms

By Alexandra Hess

Alabama, Georgia, and Ohio have passed laws in recent weeks that ban many, if not all, abortions in their state. These bans are the latest additions to the litany of laws and policies that severely limit or totally prevent access to abortion for women in the United States.

“Fetal heartbeat” bans, like those enacted in both Ohio and Georgia, are some of the most restrictive types of gestational limitations on abortion in the U.S. They prohibit abortion at the point a fetal heartbeat is detectable by ultrasound—as early as six weeks’ gestation. This is often a point before many discover they are pregnant. Ohio and Georgia are not the first states to have enacted fetal heartbeat bans, however, and current legislative trends suggest they will not be the last. In 2019 alone, lawmakers have proposed heartbeat bans in at least 14 other state legislatures. Read More

Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Louisiana TRAP Law Challenge Could Leave Thousands of Women without Abortion Access

By Adrienne Ghorashi

UPDATE: Late Thursday, February 7, the Supreme Court granted Plaintiff’s stay application, meaning Louisiana’s TRAP law may not be enforced while the challengers file an appeal. The Supreme Court will then decide whether to hear the case or deny the petition, letting the Fifth Circuit’s ruling stand.

Justice Roberts sided with the Court’s liberal justices to grant the stay, while Justices Alito, Thomas, Gorsuch, and Kavanaugh would deny it. Kavanaugh also wrote a dissent, saying he would want to see the law go into effect before deciding whether the stay was necessary.

Although this is only a temporary win for the women of Louisiana, these actions could be a sign that a majority of justices have their doubts as to the law’s constitutionality in light of Whole Woman’s Health.

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