Reproductive freedom

  • 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.

  • February 19, 2016

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    This post originally appeared on Hamilton and Griffin on Rights.

    Catholics for Choice joined nine other Catholic organizations in filing a “friend of the court” brief with the Supreme Court of the United States. The amicus brief lifts up the voices of the Catholic laity, workers, women, children and LGBT people who would be affected by the Supreme Court ruling in the Zubik v. Burwell case.

    Zubik v. Burwell is consolidated with six other cases brought by members of the Catholic hierarchy and allied organizations in the latest round of challenges to the birth control provisions in the Affordable Care Act. If the Supreme Court were to rule in favor of the bishops’ demands, hundreds of thousands of employees at religiously-affiliated nonprofit organizations could be deprived of their conscience rights, religious freedom and access to healthcare.

    Jon O’ Brien, president of Catholics for Choice and lead among the amici, said, “Where you are employed should not override your religious freedom nor limit your access to healthcare. The majority of Catholics use and support contraceptive coverage. The majority of Catholics support real religious liberty for all. The majority of Catholics would be disappointed by a ruling in favor of the bishops.”

    Continued O’Brien, “We filed this brief because we are all concerned that if the bishops and their allies get their way, it will only be the beginning. The bishops have shown their desire to circumvent any law to which they object. If the courts rule in their favor, they could start opposing health insurance benefits for same-sex couples and their dependents, or refuse maternity leave to women who have children using in vitro fertilization, or deny gay and lesbian parents the right to adopt a child.”

    Marianne Duddy-Burke, executive director of DignityUSA, a member of the coalition, said, “We believe it is absolutely essential that the petitioners not prevail in this case. We are already seeing employees in same-sex marriages being refused employment, fired and denied health benefits that are given to their colleagues—all on the basis of employers’ religious beliefs. We don’t believe the law supports this and hope the court upholds the equality of all employees.”

    Jim Fitzgerald, executive director of Call to Action, a third member of the coalition, said, “The majority of Catholics across the country support equality, inclusivity and social justice. We join them in rejecting discrimination on the basis of sexual identity or conscience-based decisions about healthcare. We lift up the rights of workers to follow their God-given conscience when making deeply personal decisions around their reproductive health.”

    “Catholics for Choice is proud to stand with our partners to represent the majority of Catholics who believe that imposing religious beliefs on others is wrong,” concluded O’Brien. “To use the Catholic faith to deny employees equal access to healthcare is not the freedom from religion guaranteed by our Constitution. What the bishops want is simply state-sponsored discrimination. We support the rights of the workers to follow their conscience when making a decision about contraception, and we oppose the hierarchy’s attempts to interfere with anyone’s personal decisions.”

    Oral arguments for Zubik v. Burwell will be heard by the Supreme Court on March 23.

     

  • December 8, 2015
    Guest Post

    by Rachel Easter, Legal Fellow, National Women’s Law Center

    Over the last five years, politicians have enacted an onslaught of abortion restrictions—more than 280 throughout the country. Politicians designed these laws to make it more difficult— often impossible—for women to access abortion, jeopardizing a woman’s constitutional right to decide whether to have an abortion. The state of Texas has been at the center of anti-abortion efforts with HB 2, a law passed in 2013 that has already closed more than half of the clinics in the state, leaving some Texas women hundreds of miles from the closest clinic. This term, the Supreme Court will hear a challenge to parts of the Texas law in Whole Woman’s Health v. Cole, the Court’s first major abortion case in nearly a decade.

    With this case, the Court has the opportunity to reaffirm that women have a fundamental right to abortion and make clear that right is rooted in both liberty and equality. The right to abortion is part of a line of cases recognizing that matters “involving the most intimate and personal choices a person may make in a lifetime” are “central to personal dignity and autonomy.” That principle underlies constitutional protection for parental rights, the right to access contraception and abortion, and the right to marriage. These cases have traditionally been understood to stem from the Due Process Clause of the 14th Amendment, but the constitutional principles of liberty and equality are fundamentally connected. The Court’s decision in Planned Parenthood v. Casey recognizes the interrelated nature of Due Process and Equal Protection. In that case, the important truth that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” played a key role in the Court’s decision to reaffirm women’s constitutionally protected right to abortion.

    Since that case, the connection between liberty and equality has become more explicit. In Lawrence v. Texas, the Court struck down laws criminalizing certain sexual acts between two people of the same sex because the laws both perpetuated inequality and infringed on the liberty to control certain personal relationships. And in Obergefell v. Hodges the Court held that bans on same-sex marriage subordinate same-sex couples by denying them the rights and privileges of marriage, a denial that both burdens liberty interests and “abridge[s] central precepts of equality.” In that case, the Court made clear that Due Process and Equal Protection are “instructive as to the meaning and reach of the other.…[I]nterrelation of the two principles furthers our understanding of what freedom is and must become.” Looking at HB 2 through this lens, it is clear that the law unconstitutionally burdens women’s liberty and equality interests.