What just happened in Texas?

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(c) Alexandra Phelan, 2014

Today has seen a new blow to Texan women’s reproductive health rights. A quick background of events for those not familiar:

  • House Bill 2: a Texas law that changes the definition of fetal viability to 20 weeks (drastically cutting back the time period of a woman’s right to seen an abortion: Roe v Wade set viability at ~28 weeks). In addition, House Bill 2 requires that a physician conducting abortions have admission rights to a hospital less than 30 miles away and blocks off-label use of two drugs, limiting women’s access to medication abortions to 49 days after the last menstrual period, rather than 63 days. These latter two provisions are the “Litigated Provisions”.

Timeline

  • June 2013: House Bill 2 passes the Texas House, and upon it being brought before the Senate, Senator Wendy Davis partakes in a marathon filibuster, defeating the Bill.
  • July 2013: Republican efforts don’t stop there, and a special session is held to pass House Bill 2 through the Senate. Governor Rick Perry signs it into law, to take effect 29 October 2013.
  • September 2013: Women’s health organizations (including Planned Parenthood) file a suit in the Federal Court to block the Litigated Provisions of House Bill 2 that violate women’s health rights.
  • 28 October 2013: Federal Court Judge Lee Yeakel strikes down the Litigated Provisions on the grounds that they were unconstitutional, placing an undue burden on women’s access to abortion. Discussion on this case can be found here.
  • 29 October 2013: Texas seeks an emergency temporary injunction from the Fifth Circuit Court of Appeal to block Judge Yeakel’s decision, and asks for a full appeal to be held in January.
  • 31 October 2013: Fifth Circuit Court of Appeal allows in part Texas’ emergency injunction, putting on hold Judge Yeakel’s permanent injunction, allowing the Litigated Provisions to come into effect with one exception: medical abortions allowable for women 50-63 days from their last menstrual period, where, due to a physical abnormality or preexisting condition, a surgical abortion is not a safe option. The Fifth Circuit agrees to hear the full appeal in January 2014. Nearly 20 clinics are forced to close around the State, as they are unable to meet the physician admissions requirements. More on this decision here.
  • 4 November 2013: Women’s health organizations file an emergency application to the US Supreme Court, seeking that Judge Yeakel’s injunction be reinstated until the full appeal is held. More here.
  • 19 November 2013: The US Supreme Court splits on idealogical grounds, refusing to grant the emergency application 5-4. The Texan laws stay in effect pending the Fifth Circuit Appeal.
  • 6 January 2014: Arguments presented to Fifth Circuit Court of Appeal.

And then flash forward to today, 28 March 2014, the Fifth Circuit Court of Appeal has handed down its ruling, reversing all of Judge Yeakel’s decision.

Given the geography of Texas, thousands of Texas women will now have virtually no access to safe and legal abortion services, and in the words of the American Medical Associations and the American College of Obstetricians and Gynecologists, upholding a law that “jeopardizes women’s health in Texas” that does “nothing to protect the health of women”.

This is an incredibly disappointing decision, with the three-judge panel giving Texas the complete go-ahead to violate fundamental human rights by severely restricting women’s health rights. The result of this decision means that both of the Litigated Provisions (requiring physicians to have admission privileges and limitations on medication abortions) come into effect on a permanent basis.

Just how permanent this is remains to be seen: there is still an option to appeal the decision to the US Supreme Court. However, given the 5-4 ideological split seen in the unsuccessful November 2013 appeal, it is not clear whether such an option would result in a decision that protects the fundamental liberties and rights of Texan women to health services.

However one would hope that the Supreme Court, as the United States’ bastion of protecting the liberties and freedoms guaranteed to Americans, when vested with the express jurisdiction to decide on the constitutionality of House Bill 2 (rather than simply on whether the requirements for an injunction have been met) would fulfill this role, not simply reinforcing the personal ideologies of the justices.

Game Changer: Women’s Health Protection Act

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Senator Blumenthal speaking at the announcement of the Women’s Health Protection Act Used under Creative Commons licence. (c) Senate Democrats at http://flic.kr/p/hwcW9Y

“A republican legislature in any state almost, as soon as they get elected to run the state legislature, they start going on offense with a whole variety of ways of trying to restrict choice, or trying to ban abortion. You don’t see the same thing in reverse; which is to say, when Democrats take over a State, they’re not out there leading on this issue.”

Chris Hayes on msnbc. View full video here.

As the past few weeks in the various courts across the United States have shown, the current term of GOP run State legislatures have been pushing hard to curb women’s reproductive rights. Perhaps emboldened by the backing of the Tea Party movement, legislatures like Texas and Oklahoma have passed laws attempting to get around a woman’s Constitutional right to abortion when it comes to medical treatment as espoused by Roe v Wade. These attempts have included redefining the point at which a fetus is deemed to be viable on its own outside the womb (sometimes described as “personhood”), thus triggering what the US Supreme Court deemed a justifiable limit on the right to privacy when balanced with the state’s legitimate interest in the woman’s health and prenatal life once it is viable. This “legitimate interest in a woman’s health” has guided the rhetoric behind much of the recent law-making by Republican State legislatures, such as in Texas and Oklahoma, where laws allegedly intended to “protect women’s health” and enable them to make “informed choices” have resulted in unjustifiable limitations of women’s reproductive rights by placing an undue burden on women seeking abortions.

But the game has now changed. In addition to the judicial actions launched by tireless organizations like the Center for Reproductive Rights and Planned Parenthood to protect women’s rights, Democrats are no long only reacting to proposed laws but are going on the offensive with the Women’s Health Protection Act.

The Women’s Helath Protection Act (WHPA) was presented to the US Congress last Wednesday, 13 November, by Senators Richard Blumenthal (D-Conn), Tammy Baldwin (D-WI), and Representatives Judy Chu (D-CA), Marcia Fudge (D-OH) and Lois Frankel (D-FL).

The WHPA Bill aims to “protect a woman’s right to determine whether and when to bear child or end a pregnancy by limiting restrictions on the provision of abortion services”. Pivotally, the WHPA recognizes that:

Access to safe, legal abortion services is essential to women’s health and central to women’s ability to participate equally in the economic and social life of the United States.

This is an incredibly powerful statement: a piece of legislation that recognizes that not only is access to abortion services a matter of individual liberty and self-determination, but is fundamental to achieving women’s economic and social equality. This is so powerful, and reminiscent of then Secretary of State Hillary Clinton’s clear and resolute response to questions regarding reproductive healh services in foreign aid.

The core provisions of the WHPA act to prevent any legislation that attempts to bypass the women’s Constitutionally protected right to access an abortion through the imposition of burdensome administrative or regulatory requirements. These bypass laws have become increasingly common, such as recent cases highlighted on this site, such as in Texas and Oklahoma.

The WHPA sets out some examples of the kinds of requirements that would be unlawful:

  • Where a doctor is required to perform a test or particular procedure only in abortions, but not other comparative medical procedures;
  • Where an abortion provider is restricted from prescribing drugs based on good-faith medical d judgment;
  • Where an abortion provider’s ability to provide abortion services via telemedicine;
  • Any unique accreditations, resources, arrangements with hospitals, that is not imposed on medically comparable facilities;
  • Where a woman is required to make medically unnecessary appointments, either to the abortion provider or any other entity (such as a counsellor or religious advisor).

It is important to note that this is not an exclusive list, and any requirement imposed by a law that restricts women’s access to abortion services, in a manner not comparable with similar medical procedures, will also be deemed unlawful.

From a lawyer’s perspective, the WHPA also sets out burdens of proof in a manner that shifts the burden onto the government imposing the restriction. As a result, this attempts to address the risks that we’ve seen in Texas where the government was able to make a prima facie case that the requirements imposed in women were likely to be for their health, thus satisfying the burden of proof for the granting of a temporary injunction. Under the proposed law, a government would have to show that the measures “significantly” improve women’s health to successfully shift the presumption, with the burden requiring “clear and convincing evidence”. This is a higher evidentiary standard than on the balance of probabilities or preponderance of evidence.

There is a lot of great stuff in the WHPA; it is an act that takes into account all of the lessons learnt in the recent few years, and anticipates weaseling by anti-women’s rights legislatures. If this Bill passes, it will be historic, and put to rest the pain and angst suffered by women around the US facing uncertainty over their ability to access Constitutionally protected rights.

Key legal documents

Text of the WHPA Bill can be found here.

Doubling Down: Supreme Court refuses to hear Oklahoma’s anti-abortion arguments for transvaginal ultrasounds

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Part of Trudeau’s 2012 comic series on the transvaginal ultrasound legislation in Texas (but equally applicable in the context of this Oklahoma case) – Universal Uclick (c) 2012 G.B. Trudeau

For the second time in as many weeks, the US Supreme Court has rejected Oklahoma’s request that the court review an Oklahoma Supreme Court’s decision invalidating anti-abortion laws.

This time, the law in question required women to undergo a “narrated ultrasound” before being allowed to proceed with an abortion. The original law (the “Oklahoma Ultrasound Act”, or HB 2780) patronisingly determined that

“[i]n order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced… the physician [performing the abortion] shall

1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;

2. Provide a simultaneous explanation of what the ultrasound is depicting;

3. Display the ultrasound images so that the pregnant woman may view them;

4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable”

When read like this, it is clear that the experience intended by Oklahoma was to be a traumatic one; an experience aimed at manipulating or shaming a woman out of making decisions about her own health and body. From a statutory interpretation perspective, the first clause is particularly interesting – making a decision between a standard ultrasound or transvaginal ultrasound (an ultrasound on a stick inserted up the vaginal canal to the cervix) is based on clarity of viewing the embryo or fetus. There is no space in the Act’s provisions for a physician to take into account the necessity of the procedure, nor in deciding which ultrasound to go for, the wellbeing, comfort or desires of the woman (probably even less so if you take a purposive, rather than purely constructional interpretation approach). As transvaginal ultrasounds tend to provide higher quality resolutions in early stage pregnancies, the result is clear: you want an abortion in Oklahoma, you’ll have to have a physician stick an ultrasound up your vagina, while they narrate to you a story of the gestating embryo or fetus. Now, there’s nothing inherently wrong with transvaginal ultrasounds – they are an incredibly useful tool in women’s reproductive health, including in the abortion setting. However, having a law dictate that a woman must go through with what is an invasive procedure under the patronising guise of enabling them to make an “informed choice” is a completely different matter, and warrants fierce opposition. This is even more so given that abortion and reproductive health procedures are constitutionally protected rights.

In December 2012, the Oklahoma Supreme Court upheld a lower court’s ruling that this patronising law was invalid as it violated women’s constitutional rights. The Oklahoma Supreme Court ruling is delightfully short, stating simply that the law is “facially unconstitutional”. In particular, the Oklahoma Supreme Court upheld the lower court’s finding that the law was in violation of:

  • Article V-59 of the Oklahoma Constitution, which fundamentally is about upholding the Rule of Law. This Article prohibits a legislature from creating a “special law”; that is, a law just for one particular subset of the population. Oklahoma therefore exceeded the powers given to it by the Constitution by passing a law that targeted only female patients, doctors and sonographers where women were seeking an abortion, not all patients, all doctors, and all sonographers in any medical situation.
  • Article V-46, which in a similar vein, provides that the legislature may not create a special law that grants a right to take a civil action (ie take a matter to court) only to a particular class of people. In this case, this related to the rights of a woman’s family, doctors, and the Attorney-General to seek an injunction against abortion providers who violate the law, and to seek damages from an abortion provider knowingly or recklessly violating the requirement to conduct a narrated ultrasound.

So after being struck down as unconstitutional by the Oklahoma District Court, then the Oklahoma Supreme Court, Oklahoma sought to appeal these decision at the US Supreme Court. Tuesday’s denial however means that the last door has closed on this law. With two decisions in the last two weeks, Oklahoma women can breathe a sigh of relief that these laws, putting women’s physical and mental health at risk, have been relegated back to the dark ages from which they came.

Key Legal Docs

US Supreme Court ruling

Here’s a link to the US Supreme Court’s refusal to hear the case by elegantly listing simply the case name under “Certiorari Denied” at the bottom of page 1.

State Supreme Court ruling

Here’s a link to the short and sweet Oklahoma Supreme Court ruling (Nova Health Systems v Pruitt 2012 OK 103 (292 P.3d 29)).

State District Court ruling

Here’s a link to the original Oklahoma District Court ruling (Nova Health Systems et al v Pruitt et al Case No. CV-2010-533) granting the permanent injunction (this was tricky to find!).

Improvidently Granted: Surprise Early Victory from US Supreme Court for Oklahoma Women’s Rights

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Used under creative commons licence, copyright to image held by Mark Fischer on flickr @ http://www.flickr.com/photos/fischerfotos/7526267232/

In a surprising early turn of events, the US Supreme Court has dismissed Oklahoma’s appeal against a December 2012 ruling by the Oklahoma Supreme Court which struck down a ban on medication abortions as unconstitutional.

As you may recall, on Tuesday, the Oklahoma Supreme Court responded to questions posed to it by the US Supreme Court, seeking clarification on its interpretation of the impact of the law on Oklahoma women. Following this, it was expected that the case would then proceed to securing a place on the SCOTUS hearing docket this or next term.

This afternoon however, SCOTUS has dismissed Oklahoma’s case, stating in one single, elegant line that

“[t]he writ of certiorari is dismissed as improvidently granted”.

This effectively means that following a reading of Oklahoma’s answers, the US Supreme Court has changed its mind on granting Oklahoma the right to appeal, stating that it should not have accepted the case. Oklahoma’s case is therefore dismissed, and the original Supreme Court of Oklahoma’s ruling that the 2011 Oklhamoma law banning off-label use of abortion drugs was unconstitutional is upheld.

Given the legal events of the last two weeks, this is a fantastic win for women’s reproductive health and protection of Oklahoma women’s constitutionally protected rights.

Today’s US Supreme Court ruling in full (all one line of it) can be found here.