Whole Woman’s Health v. Hellerstedt: Finally, Facts Matter

Tex-Supremes BlogOn Monday, June 27, 2016, the Supreme Court decided that Texas HB2 was unconstitutional, eliminating requirements for Texas doctors to have hospital admitting privileges near their clinics and for abortion clinics to become surgical facilities. Many fine summaries of this landmark decision popped up within hours of the decision. See Planned Parenthood’s press release and “The Court once again makes the ‘undue-burden’ test a referendum on the facts” on SCOTUS Blog.


On Monday, the Supreme Court demanded that laws be supported by facts.


What struck me most about the majority opinions written by Justices Breyer and Ginsburg was the lack of assertion and conjecture so often found in the court’s previous abortion case decisions. Recall Justice Kennedy’s 2007 Gonzales v. Carhart opinion upholding Congress’ Partial-Birth Abortion Act of 2003: “We find no reliable data” that abortion causes women emotional harm, but we find it nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem,” and other ills. “Some women”? Did we really uphold a law based upon this kind of neo-paternalistic, fuzzy thinking?

Not this time out. The Supreme Court put future litigants on notice: Facts matter, science matters, logic matters, common-sense inference matters. Unsupported assertions? Nah. Consultants parading as scientists? Not so much. In workmanlike fashion, dealing with abortion in a frank and unapologetic way, the majority read into law 15 separate District Court findings of fact gleaned from stipulations, depositions, and testimony. Further, the court chastised Texas for “attempting to label an opposing expert witness, Doctor Grossman, as irresponsible.” Breyer writes, “making a hypothesis — and then attempting to verify that hypothesis with further studies, as Dr. Grossman did — is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it.” Wow — The Supremes defend the scientific method. Color me happy.  Continue reading

Shouting My Abortion

shout your abortionI’ve always been a T-shirt kind of guy, wearing my shirts to proclaim allegiance to everything from my favorite rock groups to science, humor, politics, and the organizations I support, one of which is Planned Parenthood. My collection currently includes four Planned Parenthood shirts, and I wear them proudly whenever I can. While some might view this as confrontational, I see it as a potential means to open up communication. Most of the time, people don’t even notice. Occasionally, though, someone will notice, as for instance when someone thanks me for wearing my shirt. So far, no one has vocally challenged me, but every once in a while I get one of those icy stares — the kind that bore straight through you. Even a stare has value, however, in that someone who may not support Planned Parenthood must still acknowledge the fact that here is someone who does — a male, no less. Besides, my wife thinks I look good in pink. How can I argue with that?


I would not want my body ever considered to be a mere vessel for childbirth, with fewer rights than the fetus within me.


When I saw a photo of my hero Gloria Steinem wearing an “I Had an Abortion” T-shirt, my first thought was, I want one, too. The shirt was designed by Jennifer Baumgardner, co-producer of the award-winning 2005 documentary I Had an Abortion. The photo was taken by Tara Todras-Whitehill, who contacted Baumgardner and suggested photographing all of the women in the film wearing their “I Had an Abortion” T-shirts.

I did find a men’s version of the shirt still available online, though the merchant warned that it was “controversial,” a fact that has never stopped me before. Continue reading

Courting Women

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

“… [T]he difference of having three women on the Supreme Court. I think that all the justices obviously are important in that court, but it really makes a difference to begin to have a court that more reflects the diversity of this country, and I think women who can really speak from a woman’s point of view, just how impactful these kind of laws that specifically target women and women’s access to health care, how impactful they are. And I was really grateful to have the women’s voices in the room.”

Cecile Richards, Planned Parenthood president, March 2, 2016, commenting on that day’s oral arguments in Whole Woman’s Health v. Hellerstedt

Me, too, Cecile.

Courting women. Let’s snatch that phrase from the parlor in a Jane Austen novel and lob it into the Supreme Court chambers, making courting not the passive “pick me” word of yesteryear, but an assertive “empower me” word of today.

Power, judiciously applied, is what Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan demonstrated during oral arguments in Whole Woman’s Health v. Hellerstedt. They formed a tag team of relentless logic, assertiveness, and deep understanding of the predicament of women in Texas needing timely, accessible abortion care — and not getting it. The court was probing two provisions of Texas HB2, the law that requires that (1) physicians performing abortions must have admitting privileges at a hospital near their clinics and (2) all abortions must be performed in ambulatory surgical centers (ASCs, mini-hospitals). (See SCOTUSblog “Round Up” and Roe v. Wade: Texas Then and Now for additional background on this important case.)

Justices explored the elements that create an unconstitutional “undue burden” for women seeking an abortion by questioning attorney Stephanie Toti, representing Whole Woman’s Health, and Solicitor General Scott Keller, representing Texas. Here are some highlights: Continue reading

Roe v. Wade: Texas Then and Now

“Mr. Chief Justice, may it please the Court: It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”

Supreme Court, 1973

Supreme Court, 1973

Thus Jay Floyd, Texas assistant attorney general, opened his December 1971 oral argument in Roe v. Wade, as his adversary attorneys Sarah Weddington and Linda Coffee sat nearby (no doubt dumbfounded) after Weddington had presented their argument for women’s abortion rights.

Wisely, the Texas reargument in 1972 opened with no attempt at humor. (When Roe was first argued, the Supreme Court consisted of only seven justices. Because the decision would be so historic, the Supreme Court decided to hear arguments a second time when all nine justices were in place the following year.) Then, on January 22, 1973, the Supreme Court decided that a woman’s right to an abortion was constitutionally protected and the 1854 Texas law at issue was struck down, along with abortion laws in 45 other states. (The Texas gentleman was right: The Texas ladies did have the last word.)


What will the Supreme Court bring us this year? “Don’t Mess with Texas” or “Don’t Mess with Women”?


So, as we approach the 43rd anniversary of Roe v. Wade this Friday, let’s mosey down memory lane. How did we get to that landmark decision, and where might we be going this year with a new Texas case testing abortion rights, Whole Woman’s Health v. Cole?

Throughout history, abortion has been a common practice. At the time of the adoption of the U.S. Constitution in 1787, abortion was legal in all states. Prior to the mid-1800s legal scholars were not proposing abortion laws, nor advocating “personhood” of an unborn child, nor asserting abortion control on medical safety or any other grounds. Continue reading

Lucky Girl

The following guest post comes to us from Dr. Monica J. Casper, a sociologist, women’s health advocate, and creative writer who lives in Tucson, Arizona. Monica served as a member of the Planned Parenthood Arizona, Inc., board from 2012 to 2013. You can learn more about her work at www.monicajcasper.com.

ChicagoI want to tell you a love story.

A cautionary note: This is not the kind of tale you’re used to (or maybe it is?). There is no sweeping soundtrack, no Hollywood superstars falling blissfully in love onscreen, their whiter-than-white teeth dazzling a rapt audience. In this love story, there are no flowers, no sappy cards, no fairy tale endings with double rainbows and confetti.

This is not a romance.

But it is a story about people who love each other and the unexpected life choices we make. It is a memoir fragment about how some of us learn to map our uncertain futures in the warm clutch of parental benevolence. And maybe it is a ghost story, as well. The kind that haunts you, but also challenges you to imagine anew what you believe to be true and to reconsider who you believe you are, or will become.

***

The scene is Chicago, 1986, late July. It is hot, sticky, and intolerable, not even a whisper of cooling lake breeze. This is a typical sweltering summer day in my hometown.


Our whole lives unfurl before us, lives whose shape and direction we have not yet begun to fully imagine.


I fidget impatiently on the stoop of my parents’ basement apartment on the city’s North Side. They have recently sold our house in Wisconsin and moved back to the city to be closer to their work and my grandmother. Our house in the country now belongs to another family, farm people who have migrated off the land to live in town, and we are again urban dwellers. I have urgent news for my mom, who should be home any minute. I crack my knuckles and stretch my arms above my head.

What is taking her so long?

I stand up, needing to move. Concrete blisters my bare feet and sweat pools in my armpits as I pace nervously. Cars zip by on Fullerton Avenue and I am reminded of childhood, playing Kick the Can and Stranger Danger in the city’s gritty, familiar streets and alleyways. I am 19 now, not so many years older than when I patrolled the neighborhood with my sassy friends wearing bell-bottoms and halter-tops, owning the world. Continue reading

Book Club: Living in the Crosshairs

CrosshairsLiving in the Crosshairs is an important and terrifying book that was published last year by Oxford University Press. Its authors are David S. Cohen, a law professor at Drexel University who also sits on the boards of the Women’s Law Project and the Abortion Care Network, and Krysten Connon, who graduated from Drexel Law School in 2012, and is now an attorney in Philadelphia. In it, they look at targeted harassment of abortion providers. This is different from the protests we may think of outside abortion clinics, which are aimed at the clinic, or the women seeking abortions, or the issue in general. Targeted threats and attacks are aimed at individuals who work in the clinics. They are personal.

The title comes from a story of one provider’s dealings with the legal authorities. He describes one protest at the clinic where he works, where:

… a new sign displayed Paul’s picture in crosshairs. “I was just shocked that that was legal. I just can’t see how that’s fair.” Paul contacted the FBI about the targeted protest, particularly in light of the sign with the crosshairs. “They said it’s perfectly legal. The protesters could do that, and they could do worse.”

This incident shows the way abortion providers are targeted, literally and figuratively, by anti-abortion activists, and is a representative example of the stories told by the people interviewed for this report. In all, 87 providers were contacted, and 82 of them agreed to be interviewed at length. The authors included doctors, administrators, and other medical and non-medical staff who work where abortions are performed. Non-medical staff are also targets; as the authors point out, of eight providers murdered by anti-abortion killers, four were doctors; the others included two receptionists, a security guard, and a volunteer escort. And more recently, we’ve seen in Colorado Springs that people unrelated to a clinic can also be killed in anti-abortion violence. The danger is great; almost all of those interviewed chose to use false names, and to have details that could identify them changed as well. Continue reading

Movie Night: After Tiller

After TillerAfter Tiller is an award-winning documentary film that takes us inside the lives of the remaining four doctors who were openly providing third-trimester abortions in the United States after the 2009 murder of Dr. George Tiller, a staunch defender and provider of those abortions. The 88-minute film, released in 2013, seeks to shed light, rather than more heat, and move beyond the national shouting match about abortion later in pregnancy.

You can see the trailer here:

Is this film for you? Probably, if you ponder the following:

  1. Why would a pregnant woman wait so late into a pregnancy to decide to have an abortion?
  2. Why would a woman who loves her unborn baby have a late abortion?
  3. After 24 weeks’ gestation, should abortion (always, sometimes, never) be illegal?
  4. What kind of people provide third-trimester abortions?
  5. Do third-trimester abortions differ much from premature, natural childbirth?

Continue reading