Sunday, March 13, 2016

240.1 - Abortion rights under attack

Abortion rights under attack

Many, I suspect most, people among those aware of the issue think that the most important Supreme Court decision on the right of a woman to terminate her pregnancy - that is, to obtain a legal abortion - was the 1973 case Roe v. Wade.

They are wrong. The most important case is Planned Parenthood v. Casey, a 1992 case that said that states can regulate access to abortions so long as those restrictions do not place an "undue burden" on the woman. That is a loophole that a whole battalion of anti-choice fanatics have marched through in their never-ending quest to return to the days of women being kept barefoot and pregnant.

The cold fact is that the right to an abortion, while it is still supposedly the law of the land as it has been for over 40 years, is under an unrelenting and increasingly-successful attack that is founded on the anti-choicers re-branding themselves from opponents of abortion to protectors of the health and safety of women.

The result has been a space of what are known as TRAP laws, TRAP for "Targeted Regulation of Abortion Providers." These are laws that put extreme and medically unnecessary requirements on abortion centers, which usually operate as free-standing clinics but under these laws are required to have the facilities of ambulatory surgical centers and be staffed by physicians with admitting privileges in a hospital no more than 30 miles away - even if they only abortions they perform are induced by medication and they perform no surgeries at all.

Who says the requirements are medically unnecessary? Well, the American College of Obstetricians and Gynecologists and the American Medical Association, to name two.

But these states don't care. What they care about is that most clinics can't meet the expense of the added, unneeded requirements and that a significant number of hospitals - often connected to Catholic organizations - refuse to give admitting privileges to doctors who perform abortions and many others won't give admitting privileges unless the doctor admits a certain minimum number of patients per year. The result is the clinics have to close.

According to, as a result of these laws,
abortion access in the US has been vanishing at the fastest annual pace on record.... Since 2011, at least 162 abortion providers have shut or stopped offering the procedure, while just 21 opened. At no time since before 1973 ... has a woman’s ability to terminate a pregnancy been more dependent on her zip code or financial resources to travel. The drop-off in providers - more than one every two weeks - occurred in 35 states, in both small towns and big cities that are home to more than 30 million women of reproductive age.
And there were never that many to begin with; back in 2011, before the surge in forced closures, the Guttmacher Institute counted only about 1700 nationwide. What's more, the clinic closures tend to be more concentrated in red states, where reactionary state legislatures have been able to push through the harshest laws, which means that there are some places in this country where women simply can’t get an abortion - or, more exactly, a legal abortion - if they need one.

The defenders of these laws claim they are to protect the health and safety of the women seeking abortions - but that is a complete and total lie, based on the complete and total lie that abortion is a risky procedure with a significant risk of complications that would require hospitalization.

In point of actual fact, abortion is almost remarkably safe.

For first-trimester abortions, which is when the vast majority occur, the rate of complications that could require going to a hospital is less than 0.05 percent, less than 1 in 2,000. The risk of dying from a legal surgical abortion is minuscule, estimated at about 0.0006 percent, or a bit over 1 in 200,000. A woman is 14 times more likely to die in childbirth than from an abortion. Which means, of course, that if their genuine concern was the health and safety of women, these people would be urging every pregnant woman to get an abortion to better protect her own life.

Abortions have lower mortality rates than dozens of surgical procedures usually considered safe, including gallbladder removal, knee replacement, bariatric surgery, and hernia repair. Hell, the mortality rate for a colonoscopy is more than 40 times that of abortion - but, as Jeanne Conry, former president of the American College of Obstetricians and Gynecologists, notes, gastroenterologists who perform that procedure outside of a hospital setting do not face similar requirements "in the context of safety."

It's not about the health and safety of women. It's all lies.

And the lies don't stop there.

Thirty-one states require women to be given state-written, state-approved "informational packets" before getting an abortion. Researchers at Rutgers University in New Jersey looked at the information provided in 23 of those states and found that nearly a third of them contained medically inaccurate information, including overstating the degree of development of the fetus.

What's more, in the 2015-2016 legislative session there were some 251 bills in some way restricting access to abortion introduced across 37 states. According to a study by the National Partnership for Women and Families, seventy percent of those bills were based on lies about abortion procedures and doctors or false claims about why a woman would get an abortion, or both.

None of this, none of this, none of this has a damn thing to do with the health or safety of women. In fact, these laws undermine women's health. A 2013 paper in the journal Contraception found a correlation between a lack of clinics and a rise in attempts at self-induced abortions, which can be and usually are far riskier than legal ones.

The connection between clinic closures and do-it-yourself abortions was even clearer in some research by New York Times contributing op-ed writer Seth Stephens-Davidowitz. He looked at Google searches in 2015 that used terms related to self-induced abortions and then compared those state-by-state results with the harshness of abortion restrictions in each state. The two maps overlapped almost exactly: The more restrictions on access to legal abortions, the greater the interest in self-induced ones.

source: New York Times
Which brings us to March 2. That was the day that the Supreme Court heard oral arguments in the case Whole Woman's Health v. Hellerstedt, in which some abortion providers in Texas are challenging that state's extreme anti-choice law. This is, without doubt, the most important case about reproductive rights the court has heard in over two decades, since the Casey decision.

The challengers won at the district court level but lost at the 5th Circuit Court of Appeals. The Supreme Court stayed that ruling pending its own decision on the case, and here we are.

At oral arguments, the court, to I expect no one's surprise, seemed divided. Ginsburg, Kagan, Sotomayor, and Breyer all went after Texas Solicitor General Scott Keller's internally-contradictory attempts to defend the law. At one point, for example, Ginsburg asked him how may women in Texas were over 100 miles from the nearest clinic and he wound up saying that women in El Paso could go over the border to New Mexico. When she pointed out that New Mexico doesn't put the same demands on clinics that Texas does and asked him why, if those standards were good enough for women in El Paso, they weren't they good enough for women in the rest of Texas, he never answered.

Alito and Roberts - Thomas was his usual clam self - questioned whether or not it could be proved that the closures of the clinics right after the law went into effect were actually because of the law or something else - a fear of an alien invasion, maybe, who knows what they were thinking, although it seems more likely that they were looking for some way, any way they could find, to give Justice Kennedy a reason to join with them.

See, Kennedy, as is always true, is the question mark on abortion: He has made his personal distaste for it clear but has never been willing to outright ban it. In this case, while he suggested at one point that the law would increase the number of surgical abortions as opposed to those done via medication, which "may not be medically wise," he also raised the idea of remanding the case back to the lower court to develop a fuller record around some arcane procedural issues that could push the whole thing a couple of years down the road. It's possible that by their questioning Alito and Roberts were suggesting to Kennedy that the case be sent back.

Ruth Bader Ginsburg
There are four possibilities here: There clearly are four votes to strike down the law, three to say screw the women, full right-wing ahead, and Kennedy. It could end up 5-3 to protect women's rights. It could be a 4-4 tie, which would leave the lower court ruling intact. That ruling would be that of the 5th Circuit Court of Appeals, the one which upheld the Texas law. The result then would be that the Texas law stands but establishes no precedent for the rest of the country.

That, however, would be a significant blow for reproductive rights because it would tell other state legislatures that until there is a change on the Supreme Court, if you have a conservative appeals level court - such as, for example, the 6th and the 4th Circuits are - you can pass TRAP laws and SCOTUS will not turn them down, which likely would only increase the number of restrictions that women face.

A third possibility would be for the Justices to throw up their hands and call for re-argument next term (with the idea of by then having a ninth justice and so avoiding a deadlock.) Finally would be the stall, the punt, sending it back to the lower courts, with all the delays and dragging-out that entails.

A decision is not expected before June but if you want to engage in some speculation, there may be a hint of how the court is leaning to be found in a closely-related case.

Louisiana has an anti-choice law essentially identical to the Texas one now before the Supreme Court. In January, District Court Judge John deGravelles ruled that the law violates the Constitutional right of Louisiana women to obtain an abortion.

Anthony Kennedy
In February, a panel of the 5th Circuit Court of Appeals, the same one that upheld the Texas law, overruled Judge deGravelles and allowed the law to go into effect, with an expected impact of closing all but one clinic in the whole state. This was despite the fact that the Supreme Court had already stayed the 5th Circuit's ruling in the essentially identical Texas case. However, the 5th Circuit said, because that order, the one about the Texas law, had been issued without stating the high court's reasoning - by the way, such orders rarely include the reasoning behind them - the 5th Circuit "had no guidance" and so was free to make its own judgment - and allow the Louisiana law to go into effect.

About a week later, and two days after the oral arguments on the Texas law, the Supreme Court granted an emergency stay of the 5th Circuit's ruling about Louisiana. What's significant is that the order vacating the 5th Circuit’s order reinstating the Louisiana law began by saying "Consistent with the Court’s action granting a stay" in the Texas case.

That may not seem like much, but it is a definite legal smackdown after the 5th Circuit pretended to not know what SCOTUS intended by staying the Texas case. Now, considering that if it was certain that the justices were in a 4-4 deadlock and so the Texas law would stand - with the natural follow that the identical Louisiana law would stand as well - there would seem to be both less cause for the smackdown and less cause for the emergency stay. So this could be taken as a hopeful sign that the majority of the court does not accept the premises of the laws in question and will strike them down, and some people have interpreted it that way.

Unfortunately, it could also mean nothing except that the justices are irritated with the 5th Circuit's freewheeling on the issue and not paying attention to the high court's obvious preference to leave things in place, that is, as they were before the laws at issue were passed, until a decision on the matter is handed down.

On that particular question, we will have to wait and see.

But what we can't afford to wait and see is the broader battle over reproductive rights and the actual health of women and the on-going and disturbingly successful attempts by the fanatics to undo not only the 21st century but the entire 20th century as well. That fight goes on every day.

Sources cited in links:,White,Hopkins,Potter-PublicHealthThreatofAnti-abortionLegislation-Contraception-2014.pdf

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