(“I will respect precedent!” –members of the conservative majority on the Supreme Court whispered quietly into the wind as they raced back to the partisan enclaves they crawled out of…)
We are currently witnessing an unprecedented attack on women’s reproductive rights in the United States, one that has materialized on two fronts: the proliferation of more aggressive attempts to ban abortion procedures at the state level, and the nomination and confirmation of growing numbers of anti-choice federal judges. Clearly, the two are related, and they pose an existential threat to reproductive rights as we know them.
On Wednesday, the Supreme Court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, arguably the most significant reproductive rights case since Planned Parenthood v. Casey in 1992. The Court will consider the merits of Texas House Bill 2 (HB 2), the omnibus anti-abortion bill that the state legislature passed in 2013 and has served to shutter over half of the state’s abortion clinics.
HB 2 was supposedly enacted to protect women’s health, a strategy not the slightest bit unique among the hundreds of abortion restrictions that states have proposed since Roe v. Wade. To shield women from the mighty evils of the “abortion industry,” the bill does precisely nothing to protect women’s health, and does everything to deplete access. And without access, there is no choice. Read more
In mid-July, the Center for Medical Progress, a pseudo-bioethics advocacy group, began posting videos online falsely accusing Planned Parenthood of trafficking in fetal tissue, and prompting a firestorm of attacks against the women’s health organization. Senator Joni Ernst, R-Iowa, soon after introduced a bill to defund Planned Parenthood. Eighteen GOP Senators even pledged to force a government shutdown unless it is successful. Though the bill failed to pass a procedural vote earlier this week, the efforts of its supporters are far from over.
While the bill ostensibly responded to the allegations in the videos, it is but the latest in a string of legislative and judicial attacks on women. Even before the videos, anti-choice advocates fought at every turn to defund and eliminate Planned Parenthood. Their goal is the complete reversal of Roe v. Wade, and with it, women’s constitutional right to reproductive freedom. Heavily edited and mischaracterized videos are a convenient way to generate faux-outrage, but the attacks on women’s health were ongoing long before them.
Even before the videos, anti-choice advocates were engaged in an ongoing two-pronged strategy: use lawsuits based on religious freedom to cut off access to contraception, and enact draconian state laws that make safe, affordable abortions almost impossible to obtain. On both fronts, the activists have been helped by conservative judges.
In a Supreme Court case decided last year, Burwell v. Hobby Lobby, the Court ruled that, despite the Affordable Care Act’s contraceptive mandate, closely-held, for-profit corporations could invoke the religious beliefs of their owners to deny employees health insurance that covers contraceptives. The decision left important questions regarding women’s health not to the women themselves, but to their bosses.
In the year since, conservatives have returned to court seeking to drastically expand the ruling. Consistent with the decision, the Obama administration implemented exemption rules for religious institutions and other organizations like Hobby Lobby who object to providing contraception. These groups would only need to report their objection to their insurance company or the federal government, and then the cost of employees’ birth control will be paid by the government.
But for fifty-six nonprofit organizations, even that was a step too far. They filed a variety of suits challenging their already minimal obligation under the mandate. Many argued that simply notifying the government they were opting out of the mandate placed a “substantial burden” on their exercise of religion. In rejecting one suit brought by Wheaton College, Seventh Circuit Judge Richard Posner explained how the school misconceived its legal obligations:
“[W]hen Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers . . . that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans,” explained Judge Richard Posner in a Seventh Circuit ruling against the college.
Although the government has so far won all six cases decided in the courts of appeals, the real-world results have been less rosy. After losing its suit, Wheaton College chose to stop providing student health insurance of any kind in order to avoid the non-existent requirement that with insurance it must also provide emergency contraception.
The issue may soon return to the Supreme Court. There are currently six appeals involving the contraception mandate pending at the Court. That number is likely to grow as nine other cases are still pending in the circuit courts.
As those cases percolate, state lawmakers are striking at the heart of Roe itself and finding support from conservative judges. In June, the Fifth Circuit upheld a series of Texas anti-abortion laws that are some of the strictest in the country. The provisions require all clinics to have the same building equipment and staffing standards as hospital-style surgical centers, and for doctors to have admitting privileges at an area hospital. Disguised as a public safety protection, these laws are designed to be impossible to comply with. The result is the potential permanent closure of almost half of Texas’ few remaining abortion clinics.
Mississippi is currently seeking certiorari at the Supreme Court to close its last remaining abortion clinic, a feat it has been attempting for years. We tell the story of that clinic in our short documentary, Roe At Risk. And an Eighth Circuit decision last month, while preserving abortion rights in North Dakota for the moment, spent the majority of its opinion urging that Roe be overturned.
Republicans may not have succeeded in defunding Planned Parenthood this week, but their attempt is nothing new. And anti-choice advocates are stepping up the fight. The misleading and heavily edited Planned Parenthood videos are an excuse to push for what they’ve wanted for decades: an end to women’s reproductive freedoms.
A ruling by the Fifth Circuit Court of Appeals on Tuesday will close over 30 abortion clinics in Texas, likely leaving fewer than 10 open across the state. It’s no surprise to see the circuit’s judges rule against women’s rights. As we explained in a 2013 report, the decisions of the court’s Republican-appointed majority often reflect the conservative policy agenda of the presidents who appointed them, including opposition to reproductive rights.
The court upheld two state laws, one of which requires abortion providers to have admitting privileges at local hospitals and the other which requires abortion facilities to meet stringent ambulatory surgical center standards. These laws, like many others across the country, are passed under the guise of protecting health and safety. In reality, they are thinly-veiled attempts to shut down abortion clinics completely. Many facilities can’t afford the high costs of compliance, and local hospitals often refuse to grant admitting privileges. In Mississippi, for example, a similar law threatens to close the state’s last remaining clinic—a story told in AFJ’s 2013 film, Roe at Risk.
Tuesday’s decision is the latest in a string of rulings restricting access to abortion across the circuit. And two of its authors, President George W. Bush appointees Jennifer Walker Elrod and Catharina Haynes, are at the center of this trend.
Last year, both judges joined Judge Edith H. Jones in a similar ruling which upheld Texas’s hospital admitting privileges requirement and a restriction on medication abortions. Despite predictions that upholding the laws would leave 24 counties in the Rio Grande Valley without an abortion provider, the panel sided with the state because most women in Texas don’t live in the Valley. In other words, the court denied a constitutional right to an entire subset of Texas women—namely, those who live in rural areas and who cannot afford to travel long distances to find a provider. Judge James L. Dennis, dissenting from the full court’s decision not to review the case en banc, said the ruling “threaten[s] to annihilate the constitutional protections afforded women under Roe [v. Wade].”
Both judges also joined Judge Priscilla R. Owen in 2013 to stay a district court’s injunction against the laws. That ruling was left in place by the Supreme Court in a 5-4 decision.
In 2013, Judge Haynes voted to uphold a Louisiana law that broadened the malpractice liability of abortion providers by allowing women to sue for damages to the fetus, while also denying them access to the state-run malpractice insurance fund. By increasing the cost of providing abortions, the law could drive providers out of the state.
The Supreme Court may end up having the last word. A different Fifth Circuit panel—of which neither Haynes nor Elrod were members—struck down the Mississippi laws profiled in Roe at Risk, and that decision has been appealed to the Supreme Court. In the coming weeks, the Court is expected to decide whether to take the case. If it does, it should affirm the ruling and make clear to all the circuit’s judges that women’s constitutional right to abortion must be protected.
Ever since the Supreme Court ruled that banning abortion violates a woman’s right to privacy, those seeking to deny women control over their own bodies have sought to change state and federal laws to chip away at that right.
Today, Alliance for Justice zeros in on the threat to reproductive rights as we launch our annual “First Monday” social justice campaign. Alliance for Justice has been canvassing the field in the battleground states of Texas and Mississippi, listening to women’s stories and witnessing the day-to-day struggles of women who are watching their reproductive rights slip away. The centerpiece of the campaign is a short video, Roe at Risk: The Fight for Reproductive Justice, documenting both the struggle and the hope of the men and women fighting to preserve the constitutional right to reproductive freedom and justice. It is more important now than ever to take action, to speak out, and to organize for reproductive rights and access for all.
You can preview the video here: