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

Book Review: Mary Ziegler’s ‘Abortion and the Law in America’

By James Toomey

If you want to understand America, you must understand our politics of abortion. And if you want to understand our politics of abortion, you must read Mary Ziegler’s recent legal history, “Abortion and the Law in America: Roe v. Wade to the Present” (2020).

In comprehensive detail and in a singularly fair and thoughtful way, Ziegler tells the story of American regulation of abortion from the Supreme Court’s historic Roe v. Wade decision to the present, and looks ahead to an uncertain future. Through vignettes of activists who have dedicated their lives to one side of the debate or the other, Ziegler shows that, notwithstanding the superficial constancy of the abortion debate — one side proclaiming the constitutional, essential rights of the fetus, the other the similarly irreducible right of bodily autonomy — the character of the debate, and the kinds of arguments made, have shifted over the course of the last fifty years.

Read More

WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

The Harms of Abortion Restrictions During the COVID-19 Pandemic

By Beatrice Brown

Several states, including Texas, Ohio, and Alabama, have dangerously and incorrectly deemed abortions a non-essential or elective procedure during the COVID-19 pandemic. The stated reason for these orders is to conserve personal protective equipment (PPE), a scarce, important resource for protecting health care workers treating COVID-19 patients.

However, these policies restricting abortion are unlikely to conserve PPE, and more importantly, they mischaracterize the nature and importance of abortions.

Read More

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.

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.

Read More

New Study Finds That TRAP (Targeted Regulation of Abortion Providers) Laws Are More Pervasive and Stringent Than Laws Regulating Other Office Interventions – Datasets and Mapping Tool Now Available on LawAtlas

Researchers from The University of California, San Francisco’s Advancing New Standards in Reproductive Health (ANSIRH) and Temple University’s Policy Surveillance Program of the Center for Public Health Law Research (CPHLR) published a study yesterday in the American Journal of Public Health, comparing laws governing facilities that provide abortions with laws governing facilities that provide other office interventions (e.g., office-based surgeries and procedures). The study found that laws targeting abortion provision are more numerous, expansive, and burdensome than laws regulating facilities providing other medical interventions.

The study was based on empirical datasets analyzing Targeted Regulation of Abortion Providers (TRAP) Laws and Office-Based Surgery (OBS) Laws, all now available on LawAtlas.org, the Policy Surveillance Program’s website dedicated to empirical legal datasets. The study of TRAP laws is comprised of three individual datasets: Abortion Facility Licensing (AFL) Requirements, Ambulatory Surgical Center (ASC) Requirements, and Hospitalization Requirements (HR). Detailed descriptions of the TRAP datasets are below.

These three datasets complement a dataset analyzing Office-Based Surgery (OBS) Laws. This fourth dataset was included to study facility requirements imposed on abortion providers in comparison to other medical facilities.

“That I Don’t Know”: The Uncertain Futures of Our Bodies in America

By Wendy S. Salkin

I. Our Bodies, Our Body Politic

On March 30, at a town hall meeting in Green Bay, Wisconsin, an audience member asked then-presidential-hopeful Donald J. Trump: “[W]hat is your stance on women’s rights and their right to choose in their own reproductive health?” What followed was a lengthy back-and-forth with Chris Matthews. Here is an excerpt from that event:

MATTHEWS: Do you believe in punishment for abortion, yes or no as a principle?
TRUMP: The answer is that there has to be some form of punishment.
MATTHEWS: For the woman.
TRUMP: Yeah, there has to be some form.
MATTHEWS: Ten cents? Ten years? What?
TRUMP: I don’t know. That I don’t know. That I don’t know.

Much has been made of the fact that President-Elect Trump claimed that women who undergo abortion procedures should face “some sort of punishment.” Considerably less has been made of the fact that our President-Elect, in a moment of epistemic humility, expressed that he did not know what he would do, though he believed something had to be done. (He later revised his position, suggesting that the performer of the abortion rather than the woman undergoing the abortion would “be held legally responsible.”)

I am worried about the futures of our bodies, as, I think, are many. That a Trump Presidency makes many feel fear is not a novel contribution. Nor will I be able to speak to the very many, and varied, ways our bodies may be compromised in and by The New America—be it through removal from the country (see especially the proposed “End Illegal Immigration Act”), removal from society (see especially the proposed “Restoring Community Safety Act”), or some other means (see especially the proposed “Repeal and Replace Obamacare Act”).

But, I am like President-Elect Trump in this way: Like him, “I don’t know.” I don’t know what to say about what will happen to our bodies or to our body politic. So instead, today, I will take this opportunity to point to one aspect of the changing face of access to reproductive technologies that has already become a battleground in the fight over women’s bodies and will, I suspect, take center stage in the debate over the right and the ability to choose in coming years. Read More

The South Dakota Effect: A Potential Blow to Abortion Rights

By Alex Stein

Many of us are familiar with the “California Effect.” California’s hydrocarbon and nitrogen oxide emission standards for cars are more stringent than the federal EPA standards and more costly to comply with. Yet, California’s emission standards have become the national standard since automobile manufacturers have found it too expensive to produce cars with different emission systems – one for California and another for other states – and, obviously, did not want to pass up on California, the biggest car market in the nation.

Such regulatory spillover may also occur in the abortion regulation area as a consequence of the legislative reforms implemented by South Dakota and thirteen other states. These reforms include statutory enactments that require doctors to tell patients that abortion might lead to depression, suicidal thoughts and even to suicide. Failure to give this warning to a patient violates the patient’s right to informed consent and makes the doctor liable in torts. Read More