Why judges matter: The best-known example turns 40

Alliance for Justice President Nan Aron issued the following statement marking the upcoming 40^th Anniversary of the Supreme Court decision in Roe v. Wade:

Photo: Planned Parenthood Action Fund/womenarewatching.org

Tuesday’s anniversary of the Supreme Court decision in Roe v. Wade drives home the importance of the Supreme Court in our daily lives. A change of one vote on the Court in the wrong direction could set back set back advances made by women.  A change of one vote the right way can solidify the gains of the past four decades.

But after the anniversary, the urgency tends to fade.  We forget how important the Supreme Court is to our lives in so many other ways.  This year, for example, Supreme Court decisions may determine who can get married, who can go to college and even who can vote.

So we need to focus every day on fighting for a progressive judiciary, not only Supreme Court justices, but judges on our lower courts as well.

Sometimes it is, literally, a matter of life and death.

Read our three-part series: Will the Supreme Court overturn Roe v. Wade?

● Part One

● Part Two

● Part Three

And check out our Bolder Advocacy blog for a listing of how nonprofits are commemorating the anniversary.

Will the Roberts Court overturn Roe v. Wade?: Part III

In this last installment of our three-part series on reproductive health cases in the lower federal courts, we look at challenges to state laws that place restrictions on abortion providers, defund Planned Parenthood, restrict insurance coverage for reproductive health services, and restrict access to Plan B. Only time will tell if any of these cases will end up before the Court. If they do, will the Roberts Court take the opportunity to overturn Roe v. Wade?

Placing undue restrictions on abortion providers

According to the Supreme Court, a state cannot impose an undue burden on a woman seeking to terminate her pregnancy. However, states have been trying to circumvent this ruling by heightening restrictions on abortion providers.

On July 1, federal District Judge Daniel Jordan temporarily blocked a Mississippi law that would have required an OB-GYN who performs abortions to have hospital privileges, even though doctors who perform abortions are regularly denied hospital privileges in the state. As a result of Judge Jordan’s ruling, Mississippi’s only abortion clinic was able to remain open for the time being.

In Louisiana, a strict liability law was enacted to target abortion providers with a different malpractice standard than applies to other doctors in the state. Under this law, doctors who perform abortions could be held liable for malpractice regardless of whether the doctor acted negligently or was otherwise at fault for any harm. Abortion providers were also excluded from the state-run medical malpractice fund, leaving them particularly vulnerable in the face of a malpractice claim. In Hope Medical Group for Women v. LeBlanc, federal District Judge Helen Berrigan held in March that the Louisiana law placed an undue burden on a woman’s right to have an abortion and violated the Equal Protection clause because it treated abortion providers differently from other medical providers. The court found that the law was designed to scare doctors away from providing abortions in Louisiana.

Will the Roberts Court overturn Roe v. Wade?: Part II

Part II of our three-part series on the status of reproductive health issues in the lower courts resumes with more examples of court splits and fodder for Supreme Court review. There is growing concern that anti-choice activists are looking to take advantage of a sympathetic Supreme Court to ultimately overturn Roe v. Wade.



Photo: Planned Parenthood Action Fund/womenarewatching.org

Requiring doctors to provide non-medically necessary information to women seeking abortions

In addition to the spate of state laws mandating unnecessary procedures like ultrasounds, as examined in Part I, other states have recently passed laws requiring the provision of unnecessary information to women seeking abortions. Much of the legislation requires doctors to make statements that have nothing to do with women’s health, but are simply a way to discourage women from getting abortions. The lower federal courts have been split on this issue, upholding some state laws while striking down others as unconstitutional. None of these cases have yet been appealed to the Supreme Court, however, the circuit split increases the chances that the Court might grant review in one or more cases.

This July, in Planned Parenthood v. Rounds, the U.S. Court of Appeals for the Eighth Circuit upheld a South Dakota “suicide advisory” provision requiring doctors to tell a woman seeking an abortion that after the procedure she has an increased risk of committing suicide. Despite the shaky evidence for this assertion, which has been soundly refuted by the American Psychological Association, the Eighth Circuit upheld the provision, finding that “a truthful disclosure cannot be unconstitutionally misleading or irrelevant simply because some degree of medical and scientific uncertainty persists.”

Will the Roberts Court overturn Roe v. Wade?: Part I

With the airwaves dominated by talk about “legitimate rape” and “forcible rape” (as opposed to their nonsensical counterparts, “illegitimate rape” and “consensual rape”), it is clear that the War on Women rages on. At stake is not merely offensive language, but real battles over the ability of women to control their own bodies and destinies. Yet another episode in this fight may be coming soon, this time before the U.S. Supreme Court. A series of lawsuits making their way through the federal and state courts may be setting the stage for the Supreme Court to overturn Roe v. Wade as it nears its 40th anniversary in 2013.



Photo via ellabakercenter.org

This post is the first in a three-part series describing the recent legal skirmishes about a new wave of proposed or enacted laws restricting reproductive rights across the country. It is difficult to predict which case, if any, will be heard by the Supreme Court, but the attempts to restrict women’s right to choose range far and wide, including legislation that

• grants “personhood” to fetuses in Oklahoma and Missouri
• mandates non-medically necessary ultrasounds in Oklahoma, North Carolina, and Texas
• requires doctors to provide non-medically necessary information to women seeking abortions in South Dakota, Nebraska, and Indiana
• restricts abortions after 20 weeks in Arizona and Idaho
• bans certain abortion drugs so that abortions have to be performed in a hospital in Ohio
• places undue restrictions on abortion providers in Mississippi and Louisiana
• defunds Planned Parenthood’s non-abortion services in Texas
• denies health insurance coverage for reproductive services in Kansas
• denies or limits access to Plan B in Florida and Washington

The framework for these legal challenges is necessarily the Supreme Court’s 1992 plurality decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that decision, the Supreme Court upheld a woman’s right to choose as established by Roe v. Wade, but created a new test to determine whether an abortion regulation was constitutional. Under Casey, a law is constitutional if it does not place an “undue burden” on a woman’s right to have an abortion. An abortion restriction that has only the incidental effect of making it more difficult or expensive to get an abortion would be constitutional. However, if a regulation is implemented in order to obstruct the right to choose rather than to effectuate a legitimate health purpose, it may be unconstitutional. Much ink has been spilled over the past 20 years regarding what is or is not an “undue burden,” but the practical effect of Casey has been to allow more restrictions on access to abortion.

In this first post, we will focus on the cases and issues that have the best chance of reaching the Supreme Court in the near future.