Forced Birthers finally get the appeal they have been waiting for


TalibanThe Forced Birthers who want to end the constitutionally protected right of privacy of a woman to consult with her physician regarding her reproductive health care and to terminate a pregnancy within her “liberty of conscience” (as the Arizona Constitution, Article 2, Section 12 refers to it), have had a litigation strategy for years to get a case back in front of the U.S. Supreme Court in order to force a reconsideration of the landmark Roe v. Wade (1973) (abortion) and Griswold v. Connecticut (1965) (right of privacy/birth control) decisions.

This is why Republican-dominated legislatures keep enacting abortion restrictions that they know are in conflict with the law and Supreme Court precedents. They want a conflict. They hope that one of the appellate courts that Republican presidents have stacked with like-minded conservative activist judges will rule in their favor, giving them the vehicle they need to get a case back in front of the U.S. Supreme Court.

On Tuesday, the Fifth Circuit Court of Appeals, the most conservative activist court of all the appellate courts, through a three judge panel of conservative activist judges appointed by George W. Bush, upheld one of the most onerous anti-abortion laws in the country from the state of Texas.

This puts abortion rights activists in the unenviable position of having to appeal this adverse decision to the U.S. Supreme Court — a risky proposition given that there are six Catholics on the Court, five of whom are conservative activist Justices appointed by Republican presidents. How the Supreme Court would rule remains to be seen, however.

The New York Times reports, Court Upholds Texas Limits on Abortions:

A federal appellate court upheld some of the toughest provisions of a Texas abortion law on Tuesday, putting about half of the state’s remaining abortion clinics at risk of permanently shutting their doors and leaving the nation’s second-most populous state with fewer than a dozen clinics across its more than 267,000 square miles. There were 41 when the law was passed.

Abortion providers and women’s rights groups vowed a quick appeal to the United States Supreme Court, setting the stage for what could be the most far-reaching ruling in years on when legislative restrictions pose an “undue burden” on the constitutional right to an abortion.

A three-judge panel of the appellate court, the United States Court of Appeals for the Fifth Circuit, in New Orleans, sided for the most part with Texas and the abortion law the Republican-dominated Legislature passed in 2013, known as House Bill 2.

The judges ruled that Texas can require all abortion clinics in the state to meet the same building, equipment and staffing standards that hospital-style surgical centers must meet, which could force numerous clinics to close, abortion rights advocates said.

In addition to the surgical standards, the court upheld a requirement that doctors performing abortions obtain admitting privileges at a hospital within 30 miles of a clinic. The court said that except as applied to one doctor working in McAllen in South Texas, the provision did not put an unconstitutional burden on women seeking abortions.

* * *

Under the 1973 Roe v Wade decision and later cases, the Supreme Court has permitted a wide array of abortion regulations, including waiting periods and parental consent for minors, but said states may not impose an “undue burden” on the right to an abortion before a fetus is viable outside the womb.

* * *

Throughout the ruling, the Fifth Circuit judges cited the explanations given by the Texas Legislature for what is considered one of the most restrictive abortions laws in the country.

“Texas’ stated purpose for enacting H.B. 2 was to provide the highest quality of care to women seeking abortions and to protect the health and welfare of women seeking abortions,” the Fifth Circuit ruling read. “There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions.”

As an aside here, Ian Millhiser at Think Progress explains this deference to the state legislature standard, and what it could mean for women’s reproductive health care rights. The Hidden Trap In Yesterday’s Anti-Abortion Court Decision:

A federal appeals court decision handed down on Tuesday would drain Roe v. Wade of nearly all of its vibrancy if its reasoning is embraced by the Supreme Court. The decision, by three George W. Bush-appointed judges on the United States Court of Appeals for the Fifth Circuit, holds that courts should defer to the legislature’s judgment in cases seeking to invalidate an abortion law when “medical uncertainty” exists about whether the law advances patient health. As a practical matter, this will enable states to enact broad restrictions on abortion so long as the state can offer a fabricated justification claiming that the restriction is actually a health law.

Keep this in mind with respect to the lawsuit just filed by Planned Parenthood Arizona against the “junk science” in SB 1318, requiring doctors to tell women medication abortions can be safely reversed. Abortion providers file suit to block Arizona law. Arizona is not in the Fifth Circuit, but if it was, this deference to the legislature standard would permit a conservative activist court to allow this “junk science” to be upheld as “medically uncertain,” which is exactly what Cathi Herrod and the Center for Arizona Policy that sponsored this bill had in mind.

Back to the Times:

“Not since before Roe v. Wade has a law or court decision had the potential to devastate access to reproductive health care on such a sweeping scale,” said Nancy Northup, the president and chief executive of the Center for Reproductive Rights, whose lawyers were part of the legal team representing the clinics that sued the state. “Once again, women across the state of Texas face the near total elimination of safe and legal options for ending a pregnancy, and the denial of their constitutional rights.”

The decision by the Fifth Circuit, regarded as one of the most conservative federal appellate courts in the country, is expected to take effect in about 22 days. In the meantime, however, the clinics and their lawyers plan to ask the court to stay the decision while they appeal it. If the Fifth Circuit declines, the clinic lawyers said, they will seek an emergency stay from the Supreme Court that would prevent the ruling from taking effect while the Supreme Court considered whether to hear the case.

There are 18 facilities providing abortions in Texas, and if and when the Fifth Circuit’s decision goes into effect, eight clinics will close and 10 facilities are expected to remain open, largely because they are ambulatory surgery centers or have relationships with such centers, according to Dr. Daniel Grossman, an investigator with the Texas Policy Evaluation Project and one of the experts who testified for the clinics in the case.

* * *

The Fifth Circuit panel found that the percentage of affected women who would face travel distances of 150 miles or more amounted to 17 percent, a figure that it said was not a “large fraction.” An abortion regulation cannot be invalidated unless it imposes an undue burden on what the Supreme Court has termed “a large fraction of relevant cases.”

Previously, a panel of the same federal appeals court ruled that Mississippi could not force its only remaining abortion clinic to close by arguing that women could always travel to neighboring states for the procedure. Judges Block Abortion Curb in Mississippi. But the panel in the Texas case on Tuesday held that the closing of a clinic in El Paso — which left the nearest in-state clinic some 550 miles to the east — was permissible because many women had already been traveling to New Mexico for abortions, and because the rule did not close all the abortion clinics in Texas.

In the case of the McAllen clinic, the sole abortion provider in the Rio Grande Valley, Tuesday’s decision held that the distance of 235 miles or more to the nearest clinic did pose an undue burden. For now, at least, the Fifth Circuit panel exempted that clinic from aspects of the surgical-center and admitting-privileges requirements. But Amy Hagstrom Miller, the chief executive of Whole Woman’s Health, which runs the McAllen facility and was one of the abortion providers that sued the state, said the organization was evaluating whether the ruling would permit the clinic to continue operating.

Again, Ian Millhiser at Think Progress explains the significance of this part of the decision:

Though it allows a Texas law that has already shut down many of the state’s abortion clinics to take effect, it does allow a single closed clinic to reopen — albeit with only one doctor who is now allowed to perform abortions in that clinic. The Whole Woman’s Health clinic in McAllen, Texas is the sole clinic in its geographic region. The closest open clinic is approximately 235 miles away. The Fifth Circuit determined that this fact, combined several other factors such as evidence showing that many women engaged in “self-attempted abortion” once the Whole Woman’s Health clinic shut down, was enough to allow the clinic to remain open despite Texas’s law.

In the short term, this is a victory for reproductive choice. In the longer term, however, this decision could have the ironic effect of reducing access to abortion in the area surrounding McAllen. Though the Fifth Circuit’s decision does allow this one clinic to remain open, this aspect of the court’s decision only lasts “until such time as another licensed abortion facility becomes available to provide abortions at a location nearer to the Rio Grande Valley than San Antonio.”

In effect, the decision creates a geographic area where either the McAllen clinic may operate, or any other clinic or group of clinics are allowed to operate. That’s likely to discourage other clinics from opening in that area because, should a single new clinic open, it will force the McAllen clinic to close.

* * *

One way that the Texas law works to shut down clinics is by imposing expensive new architectural and other requirements that all abortion clinics must comply with in order to remain open. By one estimate cited in the court’s opinion, building a new clinic from scratch costs $3.4 million, and that does not include the price of land. Thus, thanks to the Fifth Circuit’s decision, an abortion provider that invested this $3.4 million plus the cost of land into building a new clinic is likely to only maintain the status quo in the Rio Grande Valley. To increase the number of clinics, that provider would have to invest twice as much.

Your rights and liberties are never secure. The right-wing is always working to reverse the civil rights gains of the past 150 years. “Eternal vigilance is the price of liberty.” You have to stand and fight for your rights.

UPDATE: Woman Charged With Murder For Taking The Abortion Pill [UPDATED]:

A 23-year-old Georgia woman is facing a charge of “malice murder” — a crime that is punishable by the death penalty — after allegedly ending her pregnancy by taking abortion-inducing medication that she purchased online.

The case presents just the latest example of a U.S. woman who’s been arrested and criminally charged for taking abortion pills, even though advocates on both sides of the abortion debate typically say that desperate women should not face jail time for attempting to end a pregnancy.

LATE UPDATE: A Georgia prosecutor has dropped the murder charge against a 23-year-old woman accused of ending her pregnancy without a prescription, using pills she bought online. Murder charge dropped against woman who induced abortion. Dougherty County District Attorney Greg Edwards said Kenlissia Jones still faces a misdemeanor charge of possessing a dangerous drug, which Georgia law defines as any drug requiring a prescription.

I have posted several times that the 1985 novel The Handmaid’s Tale was supposed to be a work of futuristic science fiction, but it is turning out to be a “how to” handbook for the theocratic Christian Taliban. The Handmaid’s Tale Plot Summary and Details:

In this dystopian fable, a librarian wife and mother becomes the childbearing pawn of a Christian theocracy. In the near future, as war rages across the fictional North American Republic of Gilead and pollution has rendered 99 percent of the female population sterile, Kate sees her husband killed and her daughter kidnapped while trying to escape across the border. Kate herself is transformed into a handmaid — a surrogate mother for one of the privileged but barren couples who run the country’s fundamentalist regime. Although she resists being indoctrinated into the bizarre cult of the handmaids, which mixes Old Testament orthodoxy and misogynist cant with 12-step gospel and ritualized violence, Kate soon finds herself ensconced at the home of the Commander and his frosty wife, Serena Joy… Kate longs for her vanished earlier life; she soon learns that since many of the nation’s powerful men are as sterile as their wives, she may have to risk the punishment for fornication — death by hanging — in order to sleep with another man who can provide her with the pregnancy that has become her sole raison d’être.

If people remain silent as women are systematically deprived of their constitutional liberties and rights and reduced to second class citizens who are property of the state, this dystopian fable can all too readily become a reality.