Abortion: In the Courts and in the Law
4 March 2016


US Supreme Court hears arguments on Texas abortion clinics case: 2 March 2016

3 March 2016

Whole Woman’s Health v. Hellerstedt
On 2 March, the United States Supreme Court heard a case regarding a deceptive Texas law designed to shut down more than 75 percent of all women’s health clinics that provide abortion services in the state. The Center for Reproductive Rights represented medical caregivers in their efforts to ensure women’s access to safe and legal abortion care. Forty-five amici curiae (friends of the court submissions) had been filed by abortions rights advocates in support of the medical caregivers’ case by mid-January. This is the Washington Post’s report of the day, by
Robert Barnes with Sandhya Somashekhar:

“The Supreme Court’s liberal justices united Wednesday to attack Texas’s abortion regulations as an unconstitutional burden on a woman’s rights, but the justice who holds the key vote left the court’s ultimate resolution of the issue in doubt.

Justice Anthony M. Kennedy, whom both sides consider pivotal to the outcome of the court’s most important abortion case in a generation, wondered whether there was enough evidence to decide that changes in Texas law were responsible for the closure of nearly half of the abortion clinics in the nation’s second-largest state. He wondered whether lower courts might need to do more work on the issue.

But Kennedy also questioned the law in a way that would give hope to those who support abortion rights. He was reluctant to accept Texas’s arguments that there was no reason to weigh the state’s grounds for making the 2013 changes against the obstacles created for women. And he seemed concerned that a lack of access might be leading to women undergoing abortions later in their pregnancies, which are riskier. “This may not be medically wise,” Kennedy said.

If Kennedy joins the liberals to make a five-member majority, it will have national implications, cutting off what abortion opponents had seen as a promising way to make abortion more rare. Abortion rights backers say more than 200 restrictions have been passed by states in the past five years.

Why the last abortion clinic in south Texas may be forced to close
The case is being heard by only eight members after the death last month of Justice Antonin Scalia, a conservative who did not believe that the Constitution protected the right to abortion. If Kennedy sides with the three remaining conservatives, that will not be enough by itself to secure the court’s endorsement of the two issues at stake: requiring admitting privileges at a nearby hospital for doctors who perform abortions and requiring clinics to maintain hospital-like standards.

A number of states have adopted such standards, which they say improve patient care. But abortion providers say the rules are medically unnecessary and so expensive or hard to satisfy that they force clinics to close. While a 4-to-4 tie would uphold a lower court’s decision approving the Texas law, it would not set a national precedent. The restrictions have been found unconstitutional in other courts across the nation.

The absence of Scalia affected the arguments in other ways. He was a dominating questioner, and when he and Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., fellow conservatives, worked in concert, they formed an intimidating bloc.

On Wednesday, it was the court’s four liberals who dominated the questioning. “What it’s about is that a woman has a fundamental right to make this choice for herself,” said Justice Ruth Bader Ginsburg. She and Justice Sonia Sotomayor questioned the lawyers for so long after Roberts had indicated time was up that the scheduled one-hour argument stretched for almost 30 more minutes.

Stephanie Toti of the Center for Reproductive Rights, representing the clinics, told the court that Texas’s regulations violated the standard set in the court’s last majority abortion decision, 1992’s Planned Parenthood v. Casey. That decision, written partly by Kennedy, balanced “states’ legitimate interests in regulating abortion and women’s fundamental liberty to make personal decisions about their pregnancies,” she said, adding that the Texas rules “are unnecessary health regulations that create substantial obstacles to abortion access”. She contended that partial implementation of the law has meant the closure of about half of Texas’s more than 40 abortion clinics and that full implementation would reduce that to 10 or fewer in a state with more than 5 million women of reproductive age.

Alito questioned whether Toti had proved to lower courts that the new laws were the reason. “There is very little specific evidence in the record in this case with respect to why any particular clinic closed,” Alito said. Kennedy joined in that questioning, and that was when he wondered whether lower courts should take a closer look.

But Justice Elena Kagan said the facts of what has happened as the case has worked its way through the legal process answered the questions. “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” she said. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”

Roberts questioned Toti about whether the court should pass judgment on Texas’s grounds for passing the 2013 law, as long as the state had a rational reason for the changes. “I thought the undue burden and substantial obstacle [test] went to whether it was undue in light of the woman’s right to exercise her right to an abortion,” Roberts said — either the restrictions went too far or they didn’t, regardless of the state’s intent.

With Justice Clarence Thomas asking no questions, the conservatives’ questioning was muted. At times they debated a technical legal point that, because of previous legal wrangling in the case, the clinics may have lost their right to a blanket ruling that the Texas law is unconstitutional…


As Dahlia Lithwick reports in Slate: Solicitor General Don Verrilli will probably not get adequate credit for giving a nearly flawless 10-minute argument Wednesday morning on behalf of the Obama administration. He opens with the most succinct recitation of the issue so far: “This law closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state. And it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny that the American Medical Association has told you is groundless and that the district court found will actually operate in practice to increase health risks to women.”


Verrilli’s counterpart, Texas Solicitor General Scott A. Keller, said that Texas was meeting its constitutional obligations. “Abortion is legal and accessible in Texas,” Keller said. “All the Texas metropolitan areas that have abortion clinics today will have open clinics if the court affirms, and that includes the six most populous areas of Texas.” But he was immediately set upon by the liberal justices.

Kagan said that 750,000 women would live more than 200 miles away from an abortion clinic; before the law was passed, that number was 10,000. Sotomayor questioned why a woman undergoing a medication abortion, which requires taking pills, needed to do so in a center equipped for surgery. “Your brief seemed to be telling us that there’s no role for the court to judge whether there’s really a health benefit to what you’re doing,” she said.

Ginsburg and Justice Stephen G Breyer questioned the requirement that doctors have admitting privileges at hospitals within 30 miles of a center. For one thing, Ginsburg said, any complications happen after a woman has left the center and has returned home. And Breyer challenged Keller for evidence of a single incident in which a woman was turned away from a hospital because the doctor performing an abortion lacked the required credential. Keller conceded there was nothing in the record to indicate that.

The liberal justices said that liposuction and colonoscopies had higher rates of complications than first-trimester abortions but that those procedures were performed in doctor’s offices.

Keller said abortion could be treated differently under the court’s precedents and said legislators “react to topics that are of public concern.” Kagan questioned the motives of the lawmakers. Even if Texas were allowed to set much higher medical standards for abortion clinics, she said, “I guess I just want to know why would Texas do that?” Her point seemed to be that it was not to protect health but to close clinics.

The justices are applying a test the court formulated nearly 25 years ago in the Casey decision. It said states had a legitimate interest in regulating abortion procedures but could not make them so onerous as to impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability.

Included in the description of such a burden was “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

While Texas presented medical experts who said the restrictions protected women, the clinics were supported by the American College of Obstetricians and Gynecologists and the American Medical Association, among other medical groups. “Laws that regulate abortion should be evidence-based and ­designed to improve women’s health,” they said in a brief. “The challenged provisions of H.B. 2 are neither.”…

Meanwhile, outside the Court: 

Images from:
See also:
Background by Center for Reproductive Rights:

Transcript of case:
“The women take over”: article on the women judges who dominated the day, by Dahlia Lithwick:
Tags: USA, abortion law and policy, court cases

UN Committee on the Rights of the Child calls on Kenya to decriminalise abortion in all circumstances

18 February 2016
The government of Kenya should decriminalize abortion in all circumstances and ensure adolescents have access to the full range of sexual and reproductive health information and services, according to the UN Committee on the Rights of the Child (CRC). Their recommendations call for Kenya to expand access to safe and legal abortion as well as “review its legislation with a view to ensure that girls have access to safe abortion and post-abortion care services and that their views are always heard and respected in abortion decisions”. The committee also voiced concerns over discrimination adolescents face when seeking sexual and reproductive health information and services, citing lack of quality health care services tailored to them. 
Kenya’s 2010 Constitution legalized safe abortion services when the life or health of a woman is in danger and in cases of emergency, with the aim of decreasing the high rates of mortality and morbidity resulting from unsafe abortion. However, Kenyan women today continue to be denied these services. This is largely due to a decision in December 2013 by the Director of Medical Services to arbitrarily withdraw the government’s “Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion” and a ban on safe abortion training for health care professionals, causing great confusion as to when legal abortions can be provided.
In June 2015, the Center for Reproductive Rights filed a
case against the Ministry of Health in the High Court of Kenya for undermining women’s constitutional rights and contributing to cases of maternal death by denying countless women, including rape survivors, access to safe, legal abortion.

Tags: Kenya, abortion law and policy, court cases


Tasmania’s abortion law reform 2013: an overview


by Ronli Sifris
On 21 November 2013, the Tasmanian Parliament passed legislation decriminalising abortion. Given the controversial and emotive nature of the subject matter, the passage of the legislation was long and difficult and, as is often the case when legislation is passed dealing with issues about which people feel very strongly, the outcome represents a compromise position. Significantly, like the 2008 law which decriminalised abortion in Victoria, Australia, the new Tasmanian law removes the crime of abortion from the Criminal Code. It introduces a new framework, regulating abortion as a health issue rather than a matter for the criminal law.
Given that the adoption of an approach to the issue of abortion that emphasises the human rights of the woman logically precludes the criminalisation of abortion, it is inappropriate for a supposedly rights-respecting society like Australia to categorise abortion as a crime. Secondly, the criminalisation of abortion contributes to its stigmatisation. It is to be hoped that the regulation of abortion as a health issue, rather than a matter for the criminal law, will reframe society’s perceptions of abortion as “deviant” and will instead contribute to the building of a social perception of abortion as a standard medical procedure. Thirdly, the criminalisation of abortion raises the prospect of women being prosecuted for accessing what the World Health Organization has termed “one of the safest medical procedures”. This occurred in Queensland in 2010 when a young couple was prosecuted for importing and using the abortion drug RU486.  Finally, in a country where abortion is generally available (subject to certain limitations) and where the common law has developed numerous exceptions to avoid the criminality of abortion, decriminalisation is necessary to achieve certainty and clarity in the law. In both Tasmania and Victoria, prior to decriminalisation, abortion was technically a crime but (due to common law exceptions) was available. Such a situation runs the risk of depicting the law as an ass and creates uncertainty and confusion among both doctors and patients. Therefore, the decriminalisation of abortion in Tasmania is welcome. It is to be hoped that the jurisdictions in which abortion remains a crime will follow suit.
The Tasmanian legislation allows “abortion on request” up to 16 weeks gestation.  Such a low gestational threshold for “abortion on request” is somewhat surprising. It may be contrasted with the Victorian legislation, pursuant to which “abortion on request” is allowed up to 24 weeks gestation. In Western Australia, despite abortion remaining a part of the criminal law, “abortion on request” is available up to 20 weeks gestation and in the Australian Capital Territory, there is no gestational limit to a woman’s ability to access abortion services. Nevertheless, in Tasmania debates in the Legislative Council gave rise to an attempt to reduce the gestational threshold for “abortion on request” to 14 weeks, thereby demonstrating the reality that this legislation represents a compromised, negotiated position.
After 16 weeks gestation, a pregnancy may be terminated if two medical practitioners agree “that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated”. When determining the risk to the woman’s health posed by the pregnancy, regard must be had to “the woman’s physical, psychological, economic and social circumstances”. This is similar to the Victorian legislation, pursuant to which a pregnancy may be terminated after 24 weeks gestation if two medical practitioners agree that an abortion is “appropriate in all the circumstances”. When considering “all the circumstances”, regard must be had to the woman’s medical, “physical, psychological and social circumstances”. An interesting point of difference between the Tasmanian and Victorian laws is that in Tasmania, one of the medical practitioners must be a specialist in obstetrics and gynaecology. The reason for this is unclear. For example, it is unclear why a gynaecologist/obstetrician would be more qualified than another doctor to determine whether a pregnancy poses a danger to a woman’s mental health…
A unique component of the Tasmanian legislation concerns the introduction of access zones. Access zones are also sometimes referred to as “buffer zones” or “bubble zones” because they create a bubble around an abortion clinic within which no anti-choice protesting can take place. This provision in the Tasmanian legislation prevents protesters from harassing women within 150 metres of a clinic providing abortion services. It is the first of its kind in Australia…
[The rest of the paper is about conscientious objection in this law and its implications.]
Excerpted from: Tasmania’s Reproductive Health (Access to Terminations) Act 2013: an analysis of conscientious objection to abortion and the ‘obligation to refer’. Journal of Law and Medicine  2015:22:900-914.
Tags: Tasmania, abortion law and policy, decriminalisation



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