Nel's New Day

January 5, 2016

Women Lose As Others Forge Ahead

The year 2015 was really good for people in the U.S. More red states accepted the Affordable Care Act, LGBT people gained more rights, the unemployment went down while the economy went up, the Iran agreement survived treasonous attempts by Republican legislators to destroy it, states started to move away from gerrymandering, a ban on microbeads in products will make eating fish healthier, President Obama decided to declare a war on unfettered gun ownership by felons and people with mental illnesses—the list goes on and on with encouraging actions.

Women, however, kept losing their fundamental rights. Conservative court actions and calls for defunding Planned Parenthood led to growing denials of inexpensive, easy access to health exams to detect cancer and STIs as well as contraceptives that would keep them from getting pregnant. During 2015, a number of states introduced almost 400 anti-abortion bills, an increase from 335 in 2014. From regulating medication abortions to complete bans on second-trimester abortions, 57 of these bills made it into law.

An overview of the “war on uteruses”:

Medication abortion restrictions: Arkansas requires providers to lie to patients by telling them that the effects of the “abortion pill”—a drug called mifepristone, or RU-486—can be reversed. Another restriction is mandating original FDA-approved dosage, decreasing the drug’s effectiveness and increasing negative side effects. Other inaccurate information forced on patients is the myth about fetal pain during abortion and women’s mental health problems after it. Laws also ban using telemedicine for medication abortion, especially beneficial for poor women living in rural areas. Idaho also bans this safe practice and requires doctors who administer the medication to have admitting privileges at local hospitals. With its concern about the importance of life between conception and birth, Arkansas is the second-worst state for women’s and children’s well-being.

Unprecedented bans against the most common procedure for second-trimester abortions: Kansas, the first state to pass a ban against what it calls “dismemberment abortion,” fails to use medical language in its law, opting for such emotional language as “unborn child” instead of fetus. A Kansas district judge blocked the law, and the case is on appeal. Oklahoma’s law uses even worse language by describing it as “purposely dismember[ing] a living unborn child….” That law is also on hold.

Waiting periods: North Carolina and Oklahoma tripled the time between state-mandated abortion counseling from 24 hours to 72 hours. All 12 Southeast states mandate waiting periods except for Florida where a law for a 24-hour waiting period blocked by a circuit court judge is pending a final ruling.

Reducing abortion access: Tennessee amended the state constitution by refusing any funding for abortions although state and federal money cannot legally be used to fund abortion. Another law requires clinics performing more than 50 surgical procedures a year to meet standards of ambulatory surgery centers similar to hospital standards. A woman who attempted to self-induce a miscarriage in her bathtub after 24 weeks of pregnancy now faces a first-degree attempted murder charge.

Parental consent: Arkansas women under 18 seeking a judge’s permission for an abortion without parental consent must undergo an “evaluation and counseling session with a mental health professional” to ensure that the minor is mature enough for the procedure and that an abortion is in her best interests. With no time limit for the court proceedings, the pregnancy could be so advanced that performing an abortion could become illegal. A minor is also required to file the petition in the county where she lives, violating her privacy.

Ban after 20 weeks: Despite the governor’s veto, West Virginia became the 15th state to ban abortions after 20 weeks of pregnancy. The law offers no exceptions for victims of rape or incest and provides only a highly limited exception for women whose lives are endangered by their pregnancy or for fetal abnormalities. A similar law in Arkansas against abortions after 12 weeks was struck down in the US Court of Appeals for the Eighth Circuit.

Two states did move toward preventing abortions. Oregon became the first state to offer contraceptives over the counter for up to a year’s supply, and California allows women to get birth control directly from a pharmacist.

The growing lack of access to abortion and contraception increases unintended pregnancies among poor women while the number of these among well-off women is shrinking. The rate of such pregnancies among women with incomes below the poverty line jumped 56 percent from 1994 to 2008 while falling by 24 percent for higher-income women. In 2008, the unintended-pregnancy rate for poor women was more than five times that of the most well-off.  Without Planned Parenthood, women are more likely to lack contraception. Of 491 counties with PP clinics, 103 counties have no other place giving low-income women access to affordable contraception.

Women who are turned away from terminating pregnancies are three times more likely to fall below the poverty line over the following two years than women who successfully get an abortion. They are also more likely to end up unemployed and to rely on government benefits to get by, then considered “takers” by the Republican legislators.

In the coming year, the U.S. Supreme Court will make pivotal decisions regarding women’s access to abortions and contraception.

Whole Woman’s Health vs. Cole determines whether Texas can enforce two regulations forcing about 75 percent of the state’s women’s clinics to close by requiring doctors to have admitting privileges at a local hospital and mandating clinics to have the same standards as an outpatient surgical center. Although the case is framed as a health issue for women, it is actually about blocking abortions. The decision will determine the standard used in federal courts to review abortion regulations—whether states can enact regulations without proving the effectiveness of safety.

Zubik vs. Burwell addresses the fourth SCOTUS challenge to the Affordable Care Act and the second case about the religious freedom objection to employer mandate for no-cost contraceptive coverage in health insurance policies. The issue of this case is not whether religious groups are exempt but whether they must notify the government of their religious objections. They maintain that the mere signing of a notification will “substantially burden a person’s exercise of religion,” quoting the 1993 federal law on religious liberty. Almost all the appeals courts have rejected this claim; SCOTUS will combine seven of them in this one case.

From 1973 until 1992, the Supreme Court rejected dozens of state efforts to limit access to abortion, enforcing Roe v. Wade’s ruling that until the point of viability, the state could regulate abortion only to protect the health and well-being of women. The only decisions during that time against abortion were Bellotti v. Baird (1979), ruling in favor of parental consent, and Harris v. McRae (1980), excluding payments for medically necessary abortions from Medicaid.

In 1992, Planned Parenthood v. Casey upheld a highly restrictive Pennsylvania law that included mandatory waiting periods, parental consent, and biased information. The Court abandoned the legal principles of Roe v. Wade, allowing laws designed to limit access to abortion at any stage of pregnancy if the law does not place an “undue burden” on a woman’s access to abortion. The decision that spousal consent was an undue burden has not stopped hundreds of restrictions since 1992 that were not perceived as violation of the new standard.

In the more recent Gonzales v. Carhart (2007), the Supreme Court upheld the so-called Partial-Birth Abortion Ban Act, a 2003 law that fails to refer to any medical procedure. It bans an intact dilation and evacuation (D&E) unless the fetus is no longer alive. Since then, state restrictions have forced doctors to choose a less safe procedure if they cannot ensure the fetus is no longer alive even if it is brain dead.

The number of nonhospital providers performing 400 or more abortions per year peaked in the late 1980s at 705 and fell by 2011 to 553. Since 2011, over 200 abortion restrictions have led to massive closure of clinics throughout the nation. Five states—Mississippi, Missouri, North Dakota, South Dakota and Wyoming—each have just one, and the number of abortion providers in Texas has gone from 62 across the huge state to a possibility of only ten. Not one clinic is open for 550 miles. Throughout the United States, clinics are closing at the rate of 1.5 every week. Other states have suffered the same losses, for example Ohio losing over half of its clinics.

abortion graphIn clinics still open, Christian terrorists subject workers and clients to a campaign of terror, criminal acts, and violence. The killings by these terrorists aren’t limited to clinics: Dr. George Tiller was murdered in his church while attending Sunday services. Most abortions today require endless waits, interminable journeys, humiliation, and money. According to the Supreme Court’s earlier ruling, states cannot regulate abortion if it “places an undue burden on women.” That’s the decision to be made this year about the state laws stopping poor women from obtaining their constitutional rights in reproductive care.

This summary is a beginning description of the “undue burden” of state laws on a simple procedure that can save women’s lives. According to Professor of Law Michael Dorf, the court will have to investigate if the laws mandating hospital standards at a clinic are an unnecessary health regulation—and thus unconstitutional because they are blocking women from their legally fundamental right to have abortions.

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