By Scott Burris
As we look toward National Public Health Week amid two long years of a pandemic, reflection for us at the Center for Public Health Law Research has focused on how we move forward in a mostly broken public health system. We see public health law as a central component of a strong future for public health, where transdisciplinary partnership leads the way.
By Cathy Zhang
In February, the Sixth Circuit Court of Appeals issued a one-sentence order allowing Tennessee’s “reason ban” abortion restrictions to go into effect. The restrictions make it a felony for a provider (or any other person) to perform an abortion if the provider “knows” the patient is seeking an abortion on account of the fetus’s sex, race, or probable diagnosis of Down syndrome.
The court below had previously enjoined the Tennessee law, which also includes a pre-viability abortion ban. This order leaves the previability ban in place while lifting the injunction on the reason bans; the reason bans will remain in effect until the Supreme Court makes a further ruling on abortion in Dobbs. In her dissent, Circuit Judge Karen Nelson Moore charged that the court’s order “subvert[s] the normal judicial process” and reflects a growing tendency of federal courts “to delay the adjudication of laws that significantly impair constitutional rights.”
Numerous health organizations, racial justice groups, and disability advocates alike have warned against the harms that the reason bans will inflict on people of color and disabled persons. Statements from these groups, along with 19 states and the District of Columbia, a host of constitutional law scholars, and other amici make clear that the law’s purported concern for marginalized groups belies an effort to restrict abortion access at the expense of pregnant people’s health and constitutional rights.
By Adrienne R. Ghorashi, Esq.
All eyes are on SCOTUS after the Court heard oral arguments on Mississippi’s 15-week abortion ban in Dobbs v. Jackson Women’s Health Organization and issued narrow rulings in cases related to Texas SB8 early this month. The line of questioning, as well as the Court’s continued decision to allow most abortions in Texas to come to a screeching halt, are a distressing signal that abortion rights are in immediate danger. Under Roe and Casey, bans on abortion prior to fetal viability (around 24 weeks) are a violation of a pregnant person’s constitutional right. While some have characterized Chief Justice Robert’s comments as searching for a supposed compromise to overturning Roe, this proposition ignores the stark reality of the legal landscape of abortion in the United States.
Pre-viability abortion bans, such as the one in Dobbs, already exist in 25 states, ranging from bans at any point in pregnancy, to 6-week “fetal heartbeat” bans, to the more common 20-week ban. Pre-viability abortion bans can also include “reason-based” bans that seek to prohibit abortion based on a person’s reason for seeking one. Many of these states have more than one type of abortion ban in their laws. Although most of the more extreme pre-viability bans are not currently in effect due to court rulings (with Texas SB8 being a frightening harbinger of a post-Roe nation), this legal standard is precisely what’s at stake in Dobbs.
By Lauren Breslow
On October 5, 2021, a 20-year-old Native American woman, Brittney Poolaw, was convicted by an Oklahoma jury of manslaughter for the death of her 17-week-old, non-viable fetus.
Her conviction stands as a modern recapitulation of the historical violations that women, especially Black and Brown women, have endured regarding their fertility.
By Malia Maier and Terry McGovern
The COVID-19 pandemic resulted in higher rates of family violence. For advocates and funders, this provided important opportunities to partner with movements, including racial justice, Gender-Based Violence (GBV), Reproductive Justice, and Sexual and Reproductive Health and Rights (SRHR) movements.
We interviewed 24 GBV and SRHR service providers, advocacy organizations, and donors throughout the country to understand how the pandemic and concurrent racial justice movements were impacting critical GBV and SRHR services.
By Jennifer Cohen
Profit-motivated economic activity conflicts with the realization of population health and health justice.
To work toward health justice, we must recognize health as a function of (1) capitalist economic development processes, including (2) gendered and racialized divisions of labor. Together, these heighten the contradiction between the profit motive and the domestic and global requirements of public health. This contradiction is also evident in the ways (3) markets can misallocate inputs to health (e.g., hand sanitizer, personal protective equipment for medical practitioners) and how most people obtain health (e.g., as “consumers”).
By Rachel Rebouché
Over the past few weeks, the headlines have been dominated by the implementation of a Texas “heartbeat” law. The law, which prohibits abortions after detection of fetal cardiac activity, “shall be enforced exclusively through . . . private civil actions” and “no enforcement may be undertaken by an officer of the state or local government.” For that reason, the Fifth Circuit, and then the Supreme Court, declined to enjoin the law’s application because, in part, no one had yet to enforce it. The Court did not opine on the law’s constitutionality, even though the statute directly contradicts precedent protecting abortion rights before viability. Indeed, as the DOJ argued in its recent lawsuit against Texas, the state designed the law specifically to circumvent judicial review.
What does Texas’s abortion ban have to do with health justice? The answer may not seem obvious because of how the debate over Texas’s law has been framed. Commentary has focused on whether or not litigants have standing to challenge the law or whether the federal government could successfully intervene to stop enforcement of the law. And these are important questions, especially for the providers and those “aiding and abetting” them, who are subject to the lawsuits of private citizens suing for $10,000 per procedure in violation of the law.
The costs of this law, however, could far exceed these potential damages. A health justice perspective highlights those costs and how lack of access to abortion entrenches economic and racial inequality.
By Cathy Zhang
The United States Supreme Court’s refusal to block Texas’s SB 8 abortion restriction earlier this month foreshadowed an uncertain future for abortion jurisprudence and put reproductive rights at the center of national discourse.
But abortion is not the only right at stake: the novel enforcement mechanism behind SB 8 may soon appear in a wide range of legislation, making it more difficult to challenge unconstitutional laws.
By Rachel Rebouché
Before the end of 2021, the U.S. Food and Drug Administration (FDA) will reconsider its restrictions on medication abortion. The FDA’s decision could make a critical difference to the availability of medication abortion, especially if the Supreme Court abandons or continues to erode constitutional abortion rights.
Under that scenario of hostile judicial precedents, a broad movement for abortion access — including providers, researchers, advocates, and lawyers — will be immensely important to securing the availability of remote, early abortion care.
By Zain Lakhani, Alice Miller, Kayla Thomas, with Anna Wherry
When it comes to public health intervention in a contagion, policing remains a primary enforcement tool. And where a health state is intertwined with carceral logics, enforcement becomes coercive; emphasis is placed on the control of movement and behavior, rather than on support and care.
Our experience in New Haven during the first few months of the COVID-19 pandemic well illuminates this, while also revealing a logic of exceptional force lying dormant in municipal health practices.
Attending to the local is all the more important, albeit difficult, for fast moving and intensely quotidian practices, as COVID in the U.S. seems to be settling in as a pandemic of the local.
Our experience as activist-scholars working with a New Haven-based sex worker-led harm-reduction service and advocacy group, SWAN, suggests that by focusing on municipal practices, we can better understand what public health police power actually is. By orienting our scholarship toward the way social movements engage with local politics, we can then address how these police powers complicate the ability of those most at risk of both disease exposure and police abuse to engage with local authorities. Absent this engagement and critique, progressive policies for constructive state public health powers may be more vulnerable to attack from the right.