From Chance to Choice to Court

[Cross-posted from the Huffington Post Blog]

By Dov Fox

It used to be that whether you got the child you wanted — or one you hadn’t planned on — was left to cosmic fate or the randomness of reproductive biology. Now, new powers of reproductive medicine and technology promise to deliver us from the vagaries of the natural lottery.

The likes of voluntary sterilization and embryo screening give people who can afford them greater measures of control over procreation. Except, that is, when reproductive professionals make mistakes that frustrate efforts to pursue or avoid pregnancy or parenthood.

When, for example — just a few recent cases — a pharmacist fills a woman’s birth control prescription with prenatal vitamins. Or when a fertility clinic implants embryos carrying the hereditary disease that a couple underwent in vitro fertilization (IVF) to screen out. Just this week comes another report of losing IVF embryos.

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Planned Parenthood And Fetal Tissue Sale: Manufactured Controversy And The Real Ethical Debate

This new post by I. Glenn Cohen appears on the Health Affairs Blog as part of a series stemming from the Fourth Annual Health Law Year in P/Review event held at Harvard Law School on Friday, January 29, 2016.

In 2013 the Center for Medical Progress appeared to have secured tax-exempt status for a fake company it set up called Biomax Procurement Services. The company’s “representatives” contacted the non-profit women’s health provider Planned Parenthood staffers and led them into conversations that were secretly recorded. The result, according to their website (as reported by CNN), was “a 30-month-long investigative journalism study by The Center for Medical Progress, documenting how Planned Parenthood sells the body parts of aborted babies.”

The videos were edited down and released slowly in a way designed to paint Planned Parenthood in the worst light. While some have called it a “hoax,” that’s not a word I would use in this case. When I think of great journalistic hoaxes I think of Orson Welles’s War of the Worlds (though more recent historical work suggests that the panic it caused may have been mythological). Instead what happened here, I want to suggest, is what I will call a “manufactured controversy.” [..]

Read the full post here.

10 Observations About the Supreme Court Argument in Whole Woman’s Health

Supreme Court

Flickr Creative Commons—Andrew Raff

By Gregory M. Lipper

On Wednesday, the Supreme Court heard oral argument in Whole Woman’s Health v. Hellerstedt, a constitutional challenge to a pair of Texas restrictions on abortion providers. The first provision requires doctors who perform abortions to have admitting privileges from a hospital no more than 30 miles from their clinic; for a variety of reasons, these privileges are very difficult for abortion providers to obtain. The second provision requires abortion clinics to meet the rigorous—and often prohibitively expensive—requirements governing ambulatory surgical centers (this was referred to as the ASC law). If allowed to take effect, these requirements would cause 3/4 of Texas abortion clinics to close and leave just 10 clinics to serve over 5 million women.

The requirements were struck down by the district court, reinstated by the Fifth Circuit, and temporarily blocked by the Supreme Court, which is now hearing the merits of the challenge.

Based on my review of the transcript, here are ten observations about the argument:

1. Justice Ginsburg opened the argument with a procedural curveball.

With the law’s challengers going first, most people presumably expected the argument to start with sharp questioning from, say, Justice Alito. Instead, the Center for Reproductive Rights’s Stephanie Toti got just two sentences out before she was interrupted by Justice Ginsburg. The former civil-procedure professor wanted to know about claim preclusion: in particular, whether the challenges, in this case, to the admitting-privileges requirement were foreclosed by the plaintiffs’ unsuccesful facial challenge, in an earlier case, to those same requirements. This and other procedural inquiries dominated Toti’s argument.

2. All roads lead to the record.

Several of the conservative Justices interrogated Toti about the proof that the law’s requirements would cause clinics to close. Toti provided some infromation about how laws would affect clinics, but also repeatedly alluded to more detailed information that she would supply during her rebuttal. This approach may have prolonged the questioning on this point:

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Some Very Preliminary Thoughts on Whole Women’s Health v. Hellerstedt (Texas Abortion Case) Argument

By I. Glenn Cohen

It is always dangerous to try to glean too much from oral argument, and I have only read the transcript (no recording yet) of today’s argument in Whole Women’s Health v. Hellerstedt, and finally I filed a brief in this case on the side of the law’s challengers so I may be suffering from some motivated reasoning. But with all those caveats, here goes:

Justice Scalia’s passing seems to have radically transformed this oral argument and likely this case. The 3 firm anti-abortion votes on the court (Alito and Roberts from their questions and earlier positions, Thomas we can infer from his earlier positions) left over after Justice Scalia’s passing seemed very much to be playing a defensive game. Many of their questions were aimed at convincing others on the Court (especially Justice Kennedy, the swing voter on these matters) to remand the case back to the lower court, much more so than focusing on giving Texas an outright win.

Appellant’s Counsel Toti’s argument barely was able to get to the merits questions in the case. Instead Justices Roberts, Alito, sometimes joined by Kennedy in these questions, repeatedly asked about evidence in the record on when various clinics closed, re-opened, and what evidence there was for the reason behind it. Toti tried to make use of the timing to her advantage as did the Justices more supportive of her side, but there was a lot of push on why this element of the record was not better developed. She was also repeatedly asked questions regarding the evidence on the capacity of remaining clinics to absorb extra patients needing abortions and what was developed in the record.

The same was true to a lesser extent in Appellee’s Counsel Keller’s argument. Justice Kennedy in particular focused on a line of questioning at page 44 of the argument that may also be significant in terms of remanding the case without resolving it:

“But I thought an underlying theme, or at least an underlying factual demonstration, is that this law has really increased the number of surgical procedures as opposed to medical procedures, and that this may not be medically wise?” Continue reading

Abortion Is Way More Common Than Most Voters Think

By Gregory M. Lipper

A new Vox survey reveals that a majority of registered voters underestimate the rate of abortion, and that the abortion rate is most likely to be understimated by men, college graduates, and those with higher salaries:

More educated and higher-income Americans are especially likely to believe that abortion is rare.

For example, 54 percent of Americans without a college degree underestimate abortion rates, compared with 70 percent of those with graduate degrees. And 51 percent of those earning less than $50,000 underestimate the frequency of abortion, compared with 69 percent of those earning more than $175,000.

The split happens when you look at gender, too. Women would near certainly have more experience with abortion than men. Our poll shows that 67 percent of men underestimate the frequency of abortion, compared with 57 percent of women.

Fortunately for those who support abortion rights, no Supreme Court Justices are wealthy, well-educated men…

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

Zika Messes with Texas

Photo: Texas + Fence

Flickr Creative Commons—Adam Simmons

By Gregory M. Lipper

For an ambitious, aggressive disease like Zika, Texas is an ideal home. Earlier this week we learned that Zika—a nasty virus that has spread to over 25 countries—was transmitted by sex to a resident of Dallas. Six more cases of Zika have also been confirmed in Harris County, Texas. The appearance of Zika in Texas may be happenstance, but Texas’s health policies will make it easier for Zika to spread. Among other problems, Texas (1) fails to teach students about safe sex and reduces access to affordable, effective contraceptives; (2) has blocked access to Medicaid for up to 2 million low-income residents; and (3) is trying to restrict if not eliminate access to safe abortion. Not a bad place for a communicable disease that can spread through sex and cause birth defects.

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Female Viagra: Discrimination or Medicalization or Something Else?

Earlier this year, the flibanserin pill, aka “female Viagra,” was introduced to the market, generating tons of headlines. After many years in which the plain old (male) Viagra was the sole sexual stimulator in the market, flibanserin was finally approved last August, following an 18-6 vote by the FDA advisory committee.

Before approval, flibanserin was rejected twice, and reports say that even members on the advisory board who voted in favor still had misgivings despite their final decision. Their concerns were driven by doubts regarding flibanserin’s effectiveness to treat low sexual drives. Trials showed that women who took the pill ‘earned’ only 0.7 “sexually satisfying events” in a month, whereas the drop-out rate due to negative side effects was relatively high – 14%. The side effects associated with flibanserin are low blood pressure, dizziness and such.

So what made this low cost-benefit ratio get the advisory committee’s approval the third time around? Some credit mass political campaigns promoted by women’s organizations claiming to advocate women’s interests. One position advocated by the organizations presented the pill as a treatment for a legit medical problem called HSDD (hypoactive sexual desire disorder), and it was said to be a step towards realization of women’s sexuality. The other side of the debate pushed back against what they perceive as medicalizing another realm of women’s sexuality and subjecting it (again) to the gaze of the male expert.

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Linda Greenhouse Wins Headline of the Year

By Gregory M. Lipper

“Sex After 50 at the Supreme Court” is the title of today’s Turkey Day column by the peerless Linda Greenhouse. She takes a saucy look at upcoming Supreme Court cases on contraception and abortion and the role of religion in motivating restrictions on reproductive rights and health.

Here’s a taste:

But here’s what’s the same: sex, women and religion.

Among the achievements of the Griswold decision was the separation, as a constitutional matter, of sex from procreation. Although the court viewed the issue through the lens of the privacy of the marital bedroom, that notion of liberty, once established, couldn’t remain confined to husband and wife — nor, eventually, to man and woman.

As we learned from the arguments and dissents in last June’s same-sex marriage decision, the separation of marriage — let along sex — from procreation remains deeply unsettling to segments of the religiously conservative population.

Gobble up the whole column here. Happy Thanksgiving!

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.

Texas, Self-Induced Abortion, and an Ode to Justice Powell

Flickr/Creative Commons—Edson Chilundo

Flickr/Creative Commons—Edson Chilundo

By Gregory M. Lipper

With the Supreme Court ready to review the constitutionality of restrictions on abortion providers in Texas, new research from the Texas Policy Evaluation Project suggests that between 100,000–240,000 Texas women ages 18 to 49 have attempted to terminate a pregnancy on their own (that is, without help from a licensed medical professional). According to the authors, “the populations we found to be most familiar with abortion self-induction are among those that have been most directly affected by the closure of abortion clinics in the state.” As a result, the study predicts, “abortion self-induction will increase as clinic-based care becomes more difficult to access.”

This data reinforces that efforts to ban, restrict, or otherwise interfere with efforts to obtain legal abortion don’t stop abortion—they often push women to obtain abortion by other means that are far more dangerous.

Those consequences, as it turns out, are what led one conservative Supreme Court Justice, Lewis Powell, to support abortion rights. Justice Powell was no right-to-privacy diehard; he infamously cast the deciding vote upholding the Georgia sodomy ban in Bowers v. Hardwick. But when it came to reproductive freedom, Justice Powell joined the majority opinion in Roe v. Wade and continued to support abortion rights while sitting on the Court.

According to Justice Powell’s biographer, an incident from earlier in his career reinforced that if women lacked access to legal abortion, the result would be unsafe, off-the-books procedures:

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Abortion Derangement Syndrome, Missouri Edition

Flickr/Creative Commons—Nicola

Flickr/Creative Commons—Nicola

by Gregory M. Lipper

Although the biggest abortion-related news last week came from the U.S. Supreme Court, a Missouri state senator (turned Attorney General candidate) took the prize for most bizarre.

Senator Kurt Schaefer—chairman of the Missouri Senate’s interim “Committee on the Sanctity of Life”—wrote a stern letter to the University of Missouri; he suggested that state law prohibited a Ph.D student from researching the effects of Missouri’s mandatory 72-hour waiting period for women who want to have an abortion. The law he cited provides, “It shall be unlawful for any public funds to be expended for the purpose of performing or assisting an abortion, not necessary to save the life of the mother, or for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.”

This farfetched attempt to censor academic research on the effects of government policy raises a pair of legal issues (and one psychological observation…).

First, Senator Schaefer’s interpretation of the statute is, to put it mildly, a stretch. The student isn’t going to be “performing or assisting an abortion”; she’s going to be studying abortion—more precisely, the 72 hours between when a woman seeks an abortion and is allowed to have an abortion.

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Texas, Abortion, and the Supreme Court – Part II

[cross-posted at Prawfsblawg]

By Jessie Hill

In this second post on the certiorari petition in Whole Women’s Health v. Cole, I want to consider the likelihood that the Supreme Court will take this case, and if it does, what it is likely to do with it.

I think it’s a very good bet that the Supreme Court will decide to hear this case this Term, perhaps in conjunction with one of the other cases that deals with admitting privileges laws – either Currier v. Jackson Women’s Health Organization, another admitting privileges case, in which the Fifth Circuit actually enjoined an admitting-privileges requirement that would have shut down the last remaining abortion clinic in Mississippi, or Planned Parenthood v. Van Hollen, in which the Seventh Circuit enjoined an admitting-privileges law. However, both of those cases are still at the preliminary-injunction stage, unlike Whole Women’s Health, which was rushed to trial on an expedited schedule. Still, SCOTUS has been holding onto the petition in Jackson Women’s Health Organization since the spring and may well decide to consolidate it with Whole Women’s Health. (No petition has yet been filed in Van Hollen, as that case is back in front of the district court and scheduled for trial.)

There are a lot of reasons for the Court to grant cert in at least one of these cases.

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A Circuit Split on Contraceptives Coverage

Perhaps foreshadowed by the dissent in the 10th Circuit that I wrote about here, the 8th Circuit has now officially launched a circuit split regarding the legal validity of the accommodation that allows modified compliance/objection to the contraceptives coverage mandate.  Unlike the seven other circuits to have considered the question since Hobby Lobby, the 8th Circuit yesterday issued opinions upholding preliminary injunctions in two cases (here and here), thereby preventing the mandate+accommodation from being enforced against the objecting non-profits.

First, the 8th Circuit determined that the accommodation still substantially burdens objectors’ religious beliefs because it imposes significant financial penalties if they refuse to comply with a requirement that they view as violative of those religious beliefs. As I explained previously, I do think the court was right to focus on the monetary consequences of objection, rather than assuming that merely filing the required paperwork for an accommodation does not or cannot actually make objectors complicit in the way they claim it does.

Like SCOTUS in Hobby Lobby, the 8th Circuit then went on to assume that the contraceptives coverage mandate advances a compelling government interest, which is the next step in the analysis under the Religious Freedom Restoration Act once the substantial burden test is met.  So far, so good.  But that’s the end of my agreement.

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Texas, Abortion, and the Supreme Court

[cross-posted at Prawfsblawg]

By Jessie Hill

Several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.)

The plaintiffs in Whole Women’s Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden.

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I Concur with the Dissent (or, More on Little Sisters)

On September 3, the 10th Circuit declined to rehear en banc several challenges to the contraceptives coverage mandate filed by non-profit organizations, including Little Sisters of the Poor. As SCOTUSBlog explains, these organizations had not themselves asked for en banc review, having already moved on to SCOTUS, but the judges have the option of calling for a vote themselves, which one or more of them must have done.  The vote came down 7-5 in favor of refusal, with the dissenting judges (i.e., those who wanted en banc review) issuing an explanation of their position.  On this issue, I concur with the dissent.  But I still don’t think the objecting non-profits should be off the hook.

When it comes to the contraceptives coverage mandate, non-profits, and now certain for-profits, are accommodated such that they may be relieved of the responsibility to contract, arrange, pay, or refer for contraceptives coverage if they notify the government or their health insurer of their objection to doing so, such that their insurer (or third party administrator of self-insured plans) can provide free contraceptives to their employees, at no cost to and without the involvement of the employer (all further explained here by Greg Lipper).  However, many organizations continue to argue that the accommodation fails to relieve them of complicity in providing contraceptives against their religious beliefs.  They want flat out exemption from the mandate. Continue reading

Fetal Personhood and the Constitution

By John A. Robertson

The Rubio-Huckabee claim that actual and legal personhood start at conception has drawn trenchant responses from Art Caplan on the medical uncertainty of such a claim and David Orentlicher, drawing on Judith Thomson’s famous article, that even if a fetus is a person, woman would not necessarily have a duty to keep it in her body.

Their debate claim that the fetus is already a legal person under the constitution also deserves a response, for it has no basis in positive law.  In Roe v. Wade all nine justices agreed that the use of “person” in the Constitution always assumed a born person, and therefore that the 14th Amendment’s mention of person did not confer constitutional rights until after a live birth.  In the years since Roe, when the make-up of the court has changed, no justice has ever disagreed with that conclusion, including those who would overturn Roe and Casey. Continue reading

Bioethicist Art Caplan: Marco Rubio And The GOP’s Dangerous Misconception On When Life Begins

Bill of Health Contributor Art Caplan has a new piece up on Forbes:

Does human life begin at conception? For Marco Rubio and some other politicians now running for the presidential nomination in the GOP herd, the answer is yes. There is no doubt in their mind about when life begins. Amazingly despite indifference to science regarding other matters like evolution and climate change, they invoke science on behalf of their advocacy of what might best be called “conceptionalism.” And given what science shows the law must protect every new life.

Those lobbying for conceptionalism aim to outlaw all abortions, no matter how an embryo is conceived. Even if a mentally ill 12-year-old woman is raped by her predatory father, killing an embryo, if one results, ought not be a legal option in their view. When life begins at conception murder is never an option, Rubio and his fellow-travelers aver. [..]

Read the full article here.

Abortion and the Fetal Personhood Fallacy

By David Orentlicher

[cross-posted at HealthLawProfs blog and orentlicher.tumblr.com]

Marco Rubio, Mike Huckabee, and other politicians continue to assert a common fallacy about abortion—because human life begins at conception, fetuses are persons, and abortion must be prohibited. Indeed, Huckabee and Rubio claim that the U.S. Constitution requires such a result.

But they are wrong. And not just because people disagree about the beginning of personhood. The flaw in the Rubio/Huckabee logic was pointed out more than 40 years ago, even before the U.S. Supreme Court recognized a constitutional right to abortion in Roe v. Wade. In “A Defense of Abortion,” Professor Judith Jarvis Thomson correctly observed that even if we assume that personhood begins at conception, it does not follow that abortion must be banned before the fetus is viable. Indeed, as she wrote, a ban on abortion before fetal viability would be inconsistent with basic principles of law. Continue reading

GOP Confusion Over Stem Cell Research

Bill of Health Contributor Dov Fox has a new article up on the Huffington Post:

Republican candidates convened last night for the first debates of the 2016 campaign. The presidential hopefuls disagreed on every topic they faced — immigration, health care, foreign policy, gay rights, the economy — all but one, that is. Their differences of opinion disappeared each time they were asked about the controversy over the recent release of an undercover video with Planned Parenthood. On the issue raised by that edited film clip, the candidates came together in a rare consensus.

All 17 — from Ted Cruz to Carly Fiorina — staunchly opposed research that uses tissue cells from aborted or miscarried fetuses. The candidates unanimously called for Congress to end its support of Planned Parenthood over its contribution to that research, with some like Louisiana Gov. Bobby Jindal joining party leaders who would force a government shutdown over that issue. This, after Senate Republicans earlier this week failed to clear a procedural vote to defund. […]

Read the full article here.

Planned Parenthood Did Nothing Wrong – But there is a darker side to the human tissue trade

Our blogger Michelle Goodwin has a piece up on Politico:

Republicans on Capitol Hill, and now GOP presidential candidates like Donald Trump and Jeb Bush, are jumping over each other to defund Planned Parenthood because it transfers fetal tissues to researchers at cost. But if Americans want the benefits of biotechnology—helpful surgeries, cosmetics, vaccines, Alzheimer’s treatment and pharmaceutical drugs—they and their elected representatives need to learn a few basic facts about how these social services and products are derived from human tissue research.

The latest assault on Planned Parenthood comes after graphic video clips were released over the past three weeks purporting to show the non-profit organization nefariously trading fetal body parts for profit. Despite a move by Senate Democrats to block the defunding bill on Monday, Sen. Ted Cruz and Donald Trump are joining together to try to shut down the government if Planned Parenthood gets federal money. Just yesterday, Jeb Bush railed against “the hard-to-fathom $500 million in federal funding that goes to Planned Parenthood—an organization that was callously participating in the unthinkable practice of selling fetal organs.” […]

Read the full article here.

Bioethicist Art Caplan: Planned Parenthood’s awkward clash

A new opinion piece by contributor Art Caplan in The Chicago Tribune (free registration required):

Planned Parenthood finds itself under attack by anti-abortion activists. Not much new about that. But the terrain of the battle has shifted. The way in which fetal tissue for research is obtained at Planned Parenthood clinics is now center stage.

Planned Parenthood stands accused, as a result of a sting operation launched by anti-abortion political operatives, of selling “baby parts” for profit. Edited videos show individuals pretending to be tissue brokers discussing with Planned Parenthood doctors how to get fetal tissue, the cost for tissues, techniques for increasing the chance of obtaining particular tissues and other related issues. The doctors do not come across well. Discussions are in restaurants, there is wine on the table, the attitudes are cavalier and the doctors don’t seem to pick up on the cues that they are getting set up. […]

Read the full article here.