Fairview Heights, IL—Jan 5, 2020; Sign on medical clinic announces Planned Parenthood branch is now open, the southern Illinois clinic was built to serve St Louis after Missouri restricted abortions.

Preventing Access to Abortion is Prima Facie an “Undue Burden”

By Louise P. King

As an obstetrician/gynecologist, lawyer, and bioethicist, when I read Supreme Court rulings on reproductive rights, I am struck by how little the Court understands the restrictive and burdensome nature of our medical system for women.

The latest decision on reproductive rights, June Medical Services LLC v Russo, does not bolster my confidence in the Court. The decision was narrowly won. While Chief Justice John Roberts’ concurrence gives deference to precedent, it and the dissent suggest that a slightly different statutory requirement — equally and unnecessarily restrictive of access to needed care — could, in the future, be upheld.

This is a problem given that the U.S. health care system is already rife with and primed for gender-based inequities.

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protest sign at supreme court

The Narrow Victory of June Medical Might Pave the Way for Future Abortion Restrictions

By David S. Cohen

June Medical v. Russo was a victory for Louisiana’s three independent abortion clinics and the thousands of people in the state they can now continue to serve. But, going forward, Chief Justice Roberts’ concurring opinion could pave the way for federal courts to bless a host of abortion restrictions that would make access to care more difficult.

To understand what might happen based on the Chief’s opinion, it’s instructive to look at Planned Parenthood v. Casey. In that case, the Court announced the undue burden test, a test that in theory could have had bite. Per the decision, “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

However, in Casey itself, the Court applied the standard and upheld almost all of the restrictions before it — a parental interference requirement, an abortion-only extreme informed consent process, and a 24-hour mandatory delay. The only provision the Court struck down under the undue burden test was the requirement that a married woman notify her husband before having an abortion.

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Globe.

Questioning the Comparative Relevance of US Abortion Jurisprudence

By Payal Shah

In the U.S., June Medical Services L.L.C. v. Russo is a critical decision to stall regression on abortion rights. From a global perspective, however, June Medical, along with the Court’s contemporaneous decision upholding the U.S. government’s Anti-Prostitution Loyalty Oath (APLO) in Agency for International Development v. Alliance for Open Society International, reflect another truth—the growing idiosyncrasy, insufficiency, and impropriety of comparative reference to U.S. abortion jurisprudence.

U.S. abortion jurisprudence has been cited by courts across the world in recognizing reproductive rights. This is in part because the U.S. was among the first countries to state that a women’s right to decide whether to continue a pregnancy is a protected constitutional right.

However, in the almost 50 years since Roe, the U.S. constitutional framework on abortion has not evolved in a comprehensive manner; instead has been shaped reactively, in response to laws passed by anti-abortion legislatures. Yet, constitutional courts continue to “ritualistically” employ Roe as the “hallmark of progressive law.”

The June Medical and Alliance for Open Society decisions ultimately maintain the national status quo on abortion rights—including the possibility of reversal of Roe v. Wade— and also facilitate the silencing of sexual and reproductive health rights (SRHR) movements abroad. In doing so, these decisions call into question the contemporary comparative relevance of U.S. abortion jurisprudence.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

What the Supreme Court’s LGBT Discrimination Decision Means for Health Care

By Elizabeth Sepper

On Monday, the Supreme Court held in Bostock v. Clayton County that LGBT discrimination is sex discrimination under Title VII, the federal workplace protection of the Civil Rights Act of 1964.

The ruling comes in stark contrast to a recent action taken by the Department of Health and Human Services (HHS). Just last Friday, HHS issued a new rule interpreting Section 1557 of the Affordable Care Act so as to strip LGBT people of rights to nondiscrimination.

Since it was enacted in 2010, Section 1557 of the Affordable Care Act has prohibited federally funded health programs, including insurers and health care providers, from discriminating based on the sex of patients. In 2016, the Obama Administration issued a rule making clear that transgender people and, to a lesser extent, LGB people were protected.

But under the Agency’s new interpretation, discrimination based on gender identity or sexual orientation is not sex discrimination.

In light of Monday’s Supreme Court decision, many are now wondering whether—and how—the new HHS rule interpreting Section 1557 of the ACA might be affected.

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Madison, Wisconsin / USA - April 24th, 2020: Nurses at Reopen Wisconsin Protesting against the protesters protesting safer at home order rally holding signs telling people to go home.

Wisconsin Supreme Court Strikes Down Safer at Home Order

By Katherine Drabiak

The Wisconsin Supreme Court recently struck down the state’s Safer at Home Order, calling it “unlawful, invalid, unenforceable.” Wisconsin Gov. Evers, politicians, and the media responded with outrage, alleging the decision would “throw the state into chaos” and demonstrated “reckless disregard for human life.”

These characterizations both misrepresent what the case was about and omit meaningful discussion of what state laws do – and do not – permit when responding to communicable disease.

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Madison, Wisconsin / USA - April 24th, 2020: Nurses at Reopen Wisconsin Protesting against the protesters protesting safer at home order rally holding signs telling people to go home.

Safer at Home? Yes, but Not According to the Wisconsin Supreme Court

By Beatrice Brown, Jane Cooper, and Danielle Pacia

Due to the Bill of Health production schedule, this piece is being published two weeks after it was written, on May 20th, 2020. The authors would like to affirm the importance of protests against anti-Black racism in America.

Stay-at-home orders—the primary means of managing the COVID-19 pandemic in the U.S.—face increasing opposition as protestors against these public health measures clamor for a “return to normal.” In Wisconsin, pushback against stay-at-home orders culminated in the state Supreme Court’s decision on May 13 to reverse the state’s “Safer at Home” policy.

Republican leaders of the state legislature filed suit against state Department of Health Services Secretary-designee Andrea Palm and other health officials, resulting in the case Wisconsin Legislature v. Palm. In a 4-3 ruling, the Wisconsin Supreme Court held that the “Safer at Home” order was “unlawful” and “unenforceable.”  Read More

Madison, Wisconsin / USA - April 24, 2020: Demonstrators hold flags and signs at an anti lockdown rally on the steps of the Wisconsin State capitol. State Street is in the background.

COVID-19 Policies and Constitutional Violations

By Daniel Aaron

The past few weeks have seen protests against stay-at-home orders across the country. As protesters clamor for their freedom to leave home and conduct business, a constitutional battleground emerges over the novel coronavirus.

There is a strong argument that the Constitution has been infringed during the COVID-19 pandemic. But these infringements, I will argue, have more to do with the (lack of) federal response to the pandemic than curtailed rights to move, travel, and do business.

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Histogram chart depicts the number of states that have passed restrictions, bans or protections for abortion in the United States in 2018 and 2019, as well as how court cases may have impacted the implementation of those laws.

Increased Restrictions and Court Activity for Reproductive Rights in the US in 2019

The landscape of abortion law in the United States saw increases in targeted restrictions in 2019, but also some efforts to protect access by state governments and courts, according to new data published this week to LawAtlas.org.

The data capture abortion-focused statutes and regulations (or amendments to existing laws) in effect between December 1, 2018 and December 1, 2019, as well as court cases that may impact the implementation of these laws.

Our research team noticed a few trends:

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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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Photograph of a person holding an e-cigarette in one hand and traditional cigarettes in the other hand.

FDA’s Warning Letter to Juul & the First Amendment

By Daniel Aaron

On September 10, 2019, the Food and Drug Administration (FDA) issued a warning letter to Juul asserting that the vaping manufacturer had violated federal law by illegally marketing its e-cigarettes as safer than other products. Citing evidence uncovered at a July 2019 House Subcommittee hearing as well as industry documents, FDA claims that Juul marketed its products as modified-risk tobacco products (MRTPs) without an FDA order allowing the product to be marketed as such. Therefore, FDA concluded, Juul’s products are adulterated.

At first blush, this seems like a heavy-hitting letter. FDA warning letters are an effective enforcement tool because they intimidate regulated entities and carry the threat of further enforcement. FDA likely hopes Juul will bring itself into compliance with federal law by ceasing to market its products as lower-risk.

However, enforcement letters carry no legal weight in and of themselves. Should Juul continue to market its products as lower-risk, there may be a long legal battle implicating the First Amendment.

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