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  • March 4, 2016
    Guest Post

    by Jill E. Adams, J.D., Chief Strategist, SIA Legal Team; Executive Director, Center on Reproductive Rights and Justice

    Anyone who’s read the transcript or colorful dispatches from Wednesday’s oral arguments in the Whole Woman’s Health case knows the four liberal-leaning Justices took some of the swagger out of Texas Solicitor General Scott Keller.

    What Knocked Keller Off His Lone Star High Horse?

    That would be many illuminating laser lines of questioning, among them Justice Breyer’s about how closing facilities, cutting off clinical access to safe medications and procedures, delaying abortions until later in pregnancy, and forcing women onto freeways and into overnight stays hundreds of miles away from home just might lead to an increase in the number of women who end their own pregnancies outside of the formal health care system. Justice Breyer and his sistren repeatedly call out the illogic of these cascading effects flowing directly from the state’s dementedly disingenuous claim of wanting to enhance women’s health by enacting the sweeping set of anti-abortion laws that is HB2.

    What Happens When There Is a 75 Percent Reduction in the Number of Clinics?

    Here’s a hint: It isn’t fewer abortions.

    Justice Breyer correctly points out that excessive restrictions on abortion provision limit clinic access and increase the necessity for self-administered abortion care. The Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal medical system. Global data have consistently demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the hospital to the home.

    Before your mind goes conjuring up gruesome images, take note that this is not your grandmother’s self-induced abortion. Coat hangers and other dangerous methods, while still occasionally employed, have largely given way to safer methods. More often than not, the women in the TxPEP report, and other studies, used traditional herbs or safe and effective pharmaceutical pills purchased online―the same pills they would be prescribed by a healthcare professional for a fraction of the costs.

    What Abortion Access Looks Like Under HB2 for People Living in Poverty

    The abortion costs borne by people living in poverty are much higher than one might think. A pregnant woman in Texas who is struggling to make ends meet may be shocked to discover that her health insurance doesn’t cover abortion. Like the rest of the 13.5 million women of reproductive age in the United States who rely on Medicaid, she’ll have to pay out of pocket for the abortion medication or the procedure, both of which cost about $500 in the first trimester. Tack onto that the price of bus tickets or gas, which could be high if she’s one of the 10,000 women who live more than 150 miles from the nearest abortion provider under HB2. Plus, she has to come up with money for a place to stay overnight and child care for the kids she had to leave behind. That’s all assuming she can afford the lost wages for the days away from work. All told, securing an abortion can cost some families half a month’s pay.

    Mustering Bravery and Ingenuity to Secure an Abortion

  • March 4, 2016
    Guest Post

    by Jill E. Adams, J.D., Chief Strategist, SIA Legal Team; Executive Director, Center on Reproductive Rights and Justice

    Anyone who’s read the transcript or colorful dispatches from Wednesday’s oral arguments in the Whole Woman’s Health case knows the four liberal-leaning Justices took some of the swagger out of Texas Solicitor General Scott Keller.

    What Knocked Keller Off His Lone Star High Horse?

    That would be many illuminating laser lines of questioning, among them Justice Breyer’s about how closing facilities, cutting off clinical access to safe medications and procedures, delaying abortions until later in pregnancy, and forcing women onto freeways and into overnight stays hundreds of miles away from home just might lead to an increase in the number of women who end their own pregnancies outside of the formal health care system. Justice Breyer and his sistren repeatedly call out the illogic of these cascading effects flowing directly from the state’s dementedly disingenuous claim of wanting to enhance women’s health by enacting the sweeping set of anti-abortion laws that is HB2.

    What Happens When There Is a 75 Percent Reduction in the Number of Clinics?

    Here’s a hint: It isn’t fewer abortions.

    Justice Breyer correctly points out that excessive restrictions on abortion provision limit clinic access and increase the necessity for self-administered abortion care. The Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal medical system. Global data have consistently demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the hospital to the home.

    Before your mind goes conjuring up gruesome images, take note that this is not your grandmother’s self-induced abortion. Coat hangers and other dangerous methods, while still occasionally employed, have largely given way to safer methods. More often than not, the women in the TxPEP report, and other studies, used traditional herbs or safe and effective pharmaceutical pills purchased online―the same pills they would be prescribed by a healthcare professional for a fraction of the costs.

    What Abortion Access Looks Like Under HB2 for People Living in Poverty

    The abortion costs borne by people living in poverty are much higher than one might think. A pregnant woman in Texas who is struggling to make ends meet may be shocked to discover that her health insurance doesn’t cover abortion. Like the rest of the 13.5 million women of reproductive age in the United States who rely on Medicaid, she’ll have to pay out of pocket for the abortion medication or the procedure, both of which cost about $500 in the first trimester. Tack onto that the price of bus tickets or gas, which could be high if she’s one of the 10,000 women who live more than 150 miles from the nearest abortion provider under HB2. Plus, she has to come up with money for a place to stay overnight and child care for the kids she had to leave behind. That’s all assuming she can afford the lost wages for the days away from work. All told, securing an abortion can cost some families half a month’s pay.

    Mustering Bravery and Ingenuity to Secure an Abortion

    As a matter of household economics, that is simply not feasible for many women in this position, who may turn to the internet to research less expensive alternatives to clinic-based care. Unfortunately, her Google search might turn up headlines about Purvi Patel, Jennie Linn McCormack, Kenlissia Jones, and other women who’d been in her shoes and ended up arrested and jailed for allegedly ending their own pregnancies outside the formal medical system. What is she to do? She doesn’t feel she has the resources to take care of another child, doesn’t have coverage for an abortion, doesn’t have money to pay the costs out of pocket, and doesn’t want to go to prison for taking matters into her own hands.

    The reality is that if 75 percent of the clinics in Texas close, we won’t see 75 percent fewer abortions. Resourceful women and their loved ones will find ways to end pregnancies outside the formal medical system. For some, the self-induced abortion experience will be a positive one, occurring in a safe place through effective means while accompanied by a loved one. For others, particularly people living in poverty, immigrants, and people of color who are disproportionately arrested for pregnancy-related crimes, the self-induced abortion experience may be shrouded by the fear of jail or deportation.

    A Better Way That Truly Enhances Women’s Health

    In addition to fighting laws like HB2 and others that threaten to cut off clinic-based abortion care, we must also work to halt the criminalization of self-induced abortion, which effectively curtails the abortion right altogether for many people. Instead of going after people for ending their own pregnancies, we should be working to end the stigma, restrictions, and other barriers to health care that overzealous lawmakers have imposed on abortion access. Should the Court deadlock 4-4 and allow the lower court opinion to stand, 5.4 million women of reproductive age in Texas will be forced to run the gauntlet of HB2 abortion restrictions against the ticking clock of the 20-week abortion ban. However, should the Court muster a majority and strike down these regulations as the wolves in sheep’s clothing they are, it will help to remove at least a few of the obstructions from the obstacle course that has become abortion access in this country.

    That’s still not enough, of course. Women deserve access to the full panoply of provider-directed and self-directed abortion care options, along with the freedom to choose the setting and method right for them―without fear of going broke or getting locked up. This is what it would look like to truly enhance women’s health through expanded, rather than contracted, abortion care options.

  • February 29, 2016
    Guest Post

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.

    On Wednesday, the Supreme Court will hear arguments in an historic abortion case involving two Texas laws that, if upheld, will make it much more difficult for poor women in Texas to obtain abortions. The death of Justice Scalia has little effect on the outcome of this case. There are likely three conservative votes to uphold the laws (Roberts, Alito, and Thomas) and four liberal votes to invalidate the laws (Ginsburg, Breyer, Sotomayor and Kagan). If Justice Kennedy votes with the liberals, the laws will be struck down 5-3 (instead of 5-4 had Scalia remained on the bench). If he votes to uphold the laws, the decision of the lower court sustaining both laws will be affirmed by a 4-4 vote (though the case would not have national implications).

    One of the Texas laws requires clinics that perform abortions to have the physical plans of ambulatory surgical centers while the other requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic. Before these laws went into effect, there were over 40 clinics in Texas where women could secure a safe abortion. If these laws are upheld, the number will be less than 10. Women in West Texas will have to drive over 150 miles to obtain an abortion should the Supreme Court affirm the lower court.

    The legal standard currently in effect for abortion laws is whether they pose an “undue burden” on the right to an abortion. There can be little dispute that these laws do exactly that (in fact that is their very purpose). As the Texas Solicitor General announced shortly after the laws were passed:

    These laws were not enacted solely to advance the State’s interest in maternal health. They were also enacted to advance the State’s interest in promoting and protecting fetal life. A law that is enacted to advance the State’s interest in the life of the unborn need not be medically necessary to survive constitutional challenge.

    Although Texas does argue that both laws further women’s health by making abortion clinics safer and by ensuring doctors have access to a hospital should something go wrong, both rationales are patently absurd. As Judge Posner held in a case striking down the same admitting privileges law in Wisconsin, and as many other folks have pointed out, abortion is a much safer medical procedure than many other outpatient procedures, including colonoscopies and liposuction, yet nether Wisconsin nor Texas requires doctors to have admitting privileges at local hospitals when performing those services.

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • June 23, 2015
    Guest Post

    by Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School, and Reva Siegel, Nicholas deB. Katzenbach Professor at Yale Law School.

    *This post originally appeared on Balkinization.

    "Liberty finds no refuge in a jurisprudence of doubt," the famous first line of the joint opinion in Planned Parenthood v. Casey, sounds more than a little ironic following the Fifth Circuit's latest endorsement of the unrelenting anti-abortion campaigns conducted by the elected leaders of the states within the circuit. Liberty of reproductive choice finds no refuge in the Fifth Circuit.

    Unless stayed by the Supreme Court, the recently-decided Whole Women's Health v. Cole will soon close three-quarters of the abortion clinics left in Texas.  Where there were 41 clinics less than two years ago, there will soon be as few as eight in a state of 27 million people. The disappearing clinics can't meet the law's requirements that their doctors have admitting privileges at local hospitals or that the clinics be retrofitted as mini hospitals themselves. There is no evidence that either regulation contributes to the health or safety of abortion patients. But the state justified both requirements as serving its interest in protecting women's health, and the Fifth Circuit, invoking Casey and Gonzales v. Carhart, accepted the state's claim at face value.

    In a forthcoming article in the Yale Law Journal, we argue that Casey and Carhart require more: that courts must examine how effectively a health-justified regulation actually serves the state’s asserted health interests in order to determine whether the burden it imposes on women’s access to abortion is undue.  On this analysis, a roadblock statute of the kind the Fifth Circuit recently upheld is plainly unconstitutional. We demonstrate this, not only through the language of Casey/Carhart, but also through an understanding of the compromise the undue burden framework represents.

    Recall that, in neither overturning nor wholly reaffirming Roe v. Wade, Casey authorized government to take steps to protect potential life throughout a woman's pregnancy, but only by means of persuading a woman to forego abortion and become a mother.  “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Thus, Casey upheld a 24-hour waiting period and a mandatory counseling requirement, while striking down a law requiring married women to notify their husbands of their intention to terminate a pregnancy. The line Casey drew—allowing the state to persuade a woman to choose childbirth, but forbidding the state to "hinder" her choice of abortion—is one that protects women's dignity, a value as much at the core of the Casey compromise as the protection of prenatal life.