Tagged: abortion

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Did You Hear the One About the Alaska Legislator Who Said …

We have folks who try to get pregnant in this state so that they can get a free trip to the city, and we have folks who want to carry their baby past the point of being able to have an abortion in this state so that they can have a free trip to Seattle.

One might think, at first blush, that this is a bad joke.  Yet this quote actually did fall from the lips of Alaska state representative David Eastman of Wasilla (Anchorage suburb, of Sarah Palin fame) last week, in conversation with the Associated Press.  Eastman subsequently made similar comments to other media outlets.  Bear with me as I bracket Eastman’s impeachment of women’s character, returning to it below.

Like me, you are probably wondering about this “free trip” thing, given that the Hyde Amendment prohibits the use of federal funding for abortions.  Turns out, according to the AP story, that the “Alaska Supreme Court has held that the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs.”  Mighty progressive, if you ask me, not least because many women in Alaska must travel vast distances to reach an abortion provider, given the size of the state.  And this can be mighty expensive and involve multiple plane journeys, even within Alaska.  (Bear in mind that the villages around Bethel and the Yukon-Kuskokwim Delta are among many Alaska places not accessible by road.) Ditto for those who must travel for other medical services, which the Alaska court has wisely recognized.

Indeed, speaking of distance, the dust-up created by Mr. Eastman reminds me of one of the most knuckle-headed things I’ve ever seen a judge say about the “undue burden” standard under Planned Parenthood of S.E. Pennsylvania v. Casey (1992):

A woman in Alaska, for example, could be required to travel 800 miles to get to an abortion clinic merely because she lives in one place and the nearest abortion clinic is on the other side of the state. But that certainly doesn’t constitute anything even approaching an undue burden.

The judge who wrote this was Dee Benson (now a senior district judge), and the case was Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994) (discussed here).  Why the Utah judge thought it appropriate or necessary to use an example from Alaska rather than Utah is unclear.  I suppose he was looking for the most extreme example of distance he could find–to then make the point that such travel would still not trigger a constitutional problem.  Given that Alaska is the largest state in terms of land area, Judge Benson necessarily turned to “The Last Frontier” to illustrate his point.

Interesting in light of this point is the fact that the second largest state in the union, Texas, became the subject of the latest round of litigation over abortion restrictions, culminating in the U.S. Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.  Of course, distance ultimately loomed very large in relation to the Court’s assessment of the undue burden standard there because women would have been challenged to travel as far as 550 miles each way (from El Paso to San Antonio) to reach an abortion provider had the Court not struck down Texas H.B. 2.  Read more here and here.  Distance as an undue burden is also a reminder of my recent exchange with Prof. Carol Sanger of  Columbia Law  on this blog regarding  the significance of spatiality/geography/rurality as it relates to abortion access.

But let me return now to the issue most directly implicated by Eastman’s comments,  which is less about the burden of distance (and therefore the “situation of women”)–which the state of Alaska has pragmatically taken care of, at least in part–and more about the character of women.  The AP story, by Becky Bohrer, includes not only helpful background for us on abortion availability in Alaska and, for late-term abortions, in Seattle, she also fills us in on the furor Eastman’s comments have generated:

In a speech on the House floor Friday, Democratic Rep. Neal Foster of Nome said Eastman’s comments were unacceptable and said he hoped Eastman would apologize.

“It shocks the conscience to think that a female in a village would want to endure the physical and the emotional pain of getting an abortion just so that they could get a free trip to Anchorage,” Foster said.

Most of the women who live in villages that Foster represents are Alaska Native and feel Eastman’s comments were directed toward them, Foster said. Many Alaska communities are not connected to a road system and smaller communities often have limited health services that necessitate travel to larger communities for care.

Two other “rural lawmakers,” demanded a public apology from Eastman, and Rep. Geran Tarr of Anchorage said she might “seek a motion to censure Eastman,” calling his comments “deeply offensive, racist in nature, and misogynistic.”

It is encouraging to see other legislators standing up for Alaska Natives and other rural populations.  And it also brings me back to the really outrageous part of what Eastman said–that women might purposefully get pregnant so that they can have a day out on the town, a freebie trip to the bright lights to get an abortion … and then tie on some shopping or a fancy meal, maybe even a jaunt up the Space Needle. This outrageous suggestion ties perfectly into Sanger’s over-arching point in About Abortion:  Terminating Pregnancy in the 21st Century:  women take abortion seriously–and we should presume they can make good decisions about it for themselves.  We should certainly not presume–as Eastman suggests–that they will get pregnant willy-nilly to “earn” a frolic in the city.  Insulting, misogynist and racist, indeed.

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

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Sanger’s Tour de Force on Abortion (with a Blind Spot for Geography)

We would expect nothing less from Carol Sanger than what we get from About Abortion: Terminating Pregnancy in 21st Century America: a wide-ranging, provocative, thoughtful and beautifully written monograph. As legal scholarship (if that is what Sanger intends it to be, and I am guessing she appeals to a broader audience than that), the book is “out of the box” because it is so extraordinarily, seamlessly cross-disciplinary. (Sanger is, after all, the scholar who brought us the  path breaking Girls and the Getaway:  Cars, Culture and the Predicament of Gendered Space (1995), one of my all-time favorite law review articles). As with her past work, Sanger’s prose is engaging, the breadth of literature she draws on sweeping, and the turn of phrase clever.  I am happy to report that this book is no doctrinal slog through the Supreme Court’s abortion law canon, though Sanger gives the germinal cases their due, along with a number of especially interesting ones from lower courts.

Near the outset of About Abortion, Sanger stakes out the territory she intends to cover and she articulates an over-arching point regarding women’s agency and competency:

This book is guided by a very different premise [from that of most abortion regulations and restrictions]. Women—even young women—understand very well what an abortion is. They understand that abortion ends pregnancy and that if they have an abortion, they will not have a baby: that is its very point. The significance of an abortion decision may differ from woman to woman and from girl to girl, but in deciding whether to continue a pregnancy, each will draw upon her own sensibilities, circumstances and beliefs. But as with other intimate decisions and commitments—who to marry, whether to pray, how to vote, what to do with one’s life in matters large and small—women themselves are best able to decide what is at stake.

As other reviewers in this forum have noted and detailed, Sanger takes up topics such as “Fathers and Fetuses: What Men Would Do,” “Sending Pregnant Teenagers to Court,” and “Abortion Privacy/Abortion Secrecy.” Even less conventional (as legal scholarship), though, are the chapters titled “The Eye of the Storm,” “Facing Your Fetus,” and “You Had Body, You Died.” In the first of these, Sanger analyzes the fetus as the eye of the political, cultural and religious storm about abortion. Here she explores images of fetuses from different cultures, how these images have evolved over time to look more like babies (or even little adults, with softened features), and the purposes to which fetal imagery has been put. The chapter features about a dozen illustrative images, some from outside the U.S., laying the groundwork for the next two.

In “Facing Your Fetus,” Sanger draws a clever parallel between mandatory ultrasound laws and the law of negligent infliction of emotional distress, in particular the bystander cases that typically featured mothers traumatized at having seen their child seriously injured or killed in an accident. As Sanger observes, both contexts and laws “draw upon a deep reserve of sentiment about what mothers are like and what causes them harm.” (p. 109) (It is worth noting that this is hardly a singular instance of Sanger making connections across law’s often arbitrary silos, as when she compares “abortion secrecy” to a germinal invasion of privacy (tort) case or when she compares the indignity of a minor having to air the details of her need for an abortion to the indignity of going to court for a divorce in the era when doing so required specific and detailed assertions of “fault,” e.g., cruelty, adultery).

In “You Had Body, You Died,” Sanger again uses images, this time to juxtapose women’s loss by miscarriage or even death of a child against the experience of abortion. This lays the groundwork for her discussion of the Supreme Court’s decision in Gonzales v. Carhart. Sanger is exploring here, as in the prior chapters, how “imagery acquires meaning in abortion,” (p. 147) including how the Supreme Court in Carhart used the imagery evoked by the written word (describing intact dilation and extraction) to justify its decision.

Much as I was enthralled by Sanger’s engagement with imagery and meaning in these chapters, I also appreciated the more practical turn she takes in “Sending Pregnant Teenagers to Court.” Here, Sanger builds on some of her earlier work and grapples with “on the ground” workings and consequences of abortion regulation, specifically judicial bypass for minors. Sanger surfaces an array of illustrations, mostly from reported cases but also from interviews with judges, bypass attorneys, and advocates, regarding how these laws undermine young women. One way the disservice occurs is by misunderstanding and harshly judging these teenagers, like the one in Texas who told the judge,

if I really put the cards out on the table and look through them—I—I having a baby right now would probably stop 75 percent of what I want to do … I know—I’m—like I said, I’m very busy. I have a lot of high goals, and having a baby would stop me from having them.

The judge used the “very busy” language against the young woman, ruling that—at least in part because of the way she had expressed herself—she “was not mature enough to make the [abortion] decision without parental guidance.” (p. 171). Sanger puts herself in these teenagers’ shoes, offering a very powerful critique.  She also credits the many organizations around the country, e.g., Jane’s Due Process, who help teens navigate these processes, and she notes recent legal limitations (Texas, 2016) that prevent teens from availing themselves of the anonymity an out-of-county/non-local filing and video-conference appearance might afford them.  (This is one point where Sanger might have noted the legal relevance of rurality, theorization of rural difference, see below).

In sharp contrast to this very textured and empathic discussion of what young women are up against in the judicial bypass context, About Abortion says far less about poor women seeking abortion and less still about rural women (often also poor) doing so. Sanger includes an obligatory discussion of Harris v. McRae (1980), the Supreme Court decision that upheld the Hyde Amendment’s ban on the use of federal funding for abortion. (p. 28) Later, regarding the run up to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt (2016), Sanger acknowledges that the proliferation of TRAP regulations (Targeted Regulations of Abortion Providers) like the regulations at stake in that case (Texas H.B. 2) had returned the nation to a landscape with a “pre-Roe hue, with abortions available in some states and barely available in others, wealthy women traveling again, and poor women making do” (p. 35).

Otherwise, beyond a passing reference to “zip code jurisprudence” (p. 33), the book does very little to acknowledge the significance of geography to abortion access—including in relation to the “undue burden” standard adopted in Planned Parenthood of SE Pennsylvania v. Casey (1992) and the numerous federal courts who have since applied that standard. Admittedly, as a legal geographer, this is my pet issue, and it would be churlish of me to suggest that Sanger should have written the book I would have written. Yet it is a perennial surprise to me that scholars of reproductive rights and reproductive justice pay so little attention to the plight of rural women, devote so few scholarly resources to the geography angle on the exercise of rights.

The petitioners’ brief in Casey mentioned “low-income, young, rural or battered women,” three times in relation to the informed consent and waiting period laws imposed by the State of Pennsylvania. Yet the Casey plurality opinion failed to mention rural women at all except in a quoted finding of fact from the district court, which it ultimately dismissed. That plurality concluded that the trial court’s finding that “for those women with the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be ‘particularly burdensome’” was “troubling in some respects” but insufficiently burdensome to invalidate the law. Many federal courts in the wake of Casey similarly dismissed the burden that waiting period/informed consent laws imposed on those living far from abortion providers.

Next, of course, came the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court finally took distance seriously—although it’s worth noting that it took vast Texas distances of 300-to-500 miles to get the Court’s attention. In short, Whole Woman’s Health put some teeth back into the undue burden standard, and Sanger notes the salience of travel and distance to that holding. In Whole Woman’s Health, Sanger writes, the Supreme Court balanced Texas H.B. 2’s “near non-existent medical benefits” against the “longer travel times, more time away from home, increased costs of child care, and the greater risk of being found out put in play by the lengthier process.” (p. 35).

Yet Sanger reserves her passion and a long quote from the Supreme Court opinion for another issue incident to the clinic closures wrought by Texas H.B. 2: the long wait times and the “crammed to capacity superfacilities” where women would have been expected to get abortions had the Supreme Court upheld the Texas regulations, leading to the closure of all but some half dozen Texas clinics. This mirrors the shift in media focus as Whole Woman’s Health made its way from the federal district court to the Supreme Court—a shift from a focus on distance to a focus on wait times as the dwindling number of clinics struggled to accommodate Texas’s 5.4 million reproductive-age women. It was a shift in focus from space to time, effectively from rural to urban.

The difference between Sanger’s passionate critique of sending teenagers to court in judicial bypass procedures and her brief matter-of-fact recital of the role of travel and distance in Whole Woman’s Health is striking. Again, Sanger’s passion need not be mine, but I can’t help grieve the lack of attention to rural Americans—especially low-income ones—whose lived realities are so little understood by coastal elites, by those who shape litigation with respect to rights whose exercise implicates the traversal of distance (including voting!), those who may take public transportation for granted, those who do not subsist on poverty  level wages. If the 2016 Election has taught us anything, it is surely that the narrating classes need to see rural Americans in all of their complexity—and that rural Americans resent their invisibility on the national stage. In short, rural America needs an advocate (better yet, a dozen or two, in an array of contexts) as eloquent and passionate as Sanger is generally about abortion.

This relative neglect of spatiality, geography, rurality should not, of course, dissuade anyone from reading About Abortion. Quite the contrary: the book is a tour de force, perhaps Sanger’s magnum opus. She accomplishes a great deal, in her inimitable way, and with elegance. It is an important book, and it deserves a wide audience, across many disciplines.

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FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015

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Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.

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Partial Birth Abortion and Scientific Uncertainty

Although my area of research is primarily environmental law, I also explore how lawmakers deal with scientific uncertainty. And so the recent decision in the consolidated partial-birth abortion cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) really interests me.

In these cases, Justice Kennedy states that “when medical uncertainty persists . . . The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Accordingly, the Court deferred to Congressional findings in 2003 that partial-birth abortion is never medically necessary. While this is definitely a blow for advocates of abortion rights, I can’t say (without further deeper reflection) that I automatically disagree with this approach, in which the majority deferred to Congressional findings, albeit not “uncritically.” This approach, after all, affects many areas in which Congress has made decisions to regulate in the face of scientific uncertainty, including environmental and health regulation. For example, how much can the presence of scientific uncertainty allow Congress to authorize agencies to protect the environment under the Commerce Clause?

The key, though, is how this “not uncritical” examination plays out in the future, and how “uncertainty” is defined. How much medical disagreement is necessarily to overcome a Congressional finding? If the bar is too high–which it could be, given how one could argue that all of science is “uncertain” and “unstable” to some extent–then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet “uncertain” risks.

What I would have liked to have seen, therefore, is a more thorough delineation of the nature of uncertainty and degrees of uncertainty, setting out ways for courts to inquire into its legal existence, which of course could be distinct from its epistemological existence. (This, by the way, seemed incomplete in the global-warming case of Massachusetts v. EPA as well.) Instead, it’s treated as almost an on-off thing, rather than recognizing degrees (and kinds) of uncertainty.

I would also like to have seen some recognition that scientific findings and legal findings are often intermingled. As many scholars observe, much of the science at issue in legal decisions involve “trans-scientific determinations”–determinations that involve both scientific and policy components. Because of this, a judicial determination could go either way depending on whether you look at a given determination as scientific, or legal (despite the presence of both elements). On one hand, you’ve got courts deferring to Congress when it “act[s] in areas fraught with medical and scientific uncertainties,” but you’ve also got the canon that courts apply (somewhat inconsistently) to construe statutes to avoid constitutional risks–which also involve areas of uncertainty, albeit legal uncertainty. And so without delineating how you “tell” what counts as science (for legal purposes) or law (for legal purposes), you end up with a situation where the rule of deference that one applies (or doesn’t apply) will depend heavily on a standardless characterization of the nature of a determination.

Anyway, I’m still thinking this through! So I’d really appreciate further thoughts and suggestions!